[00:00:00] Speaker 03:
Our third case this morning, 23-8058, Luker versus Evansville, Mr. Allison.

[00:00:08] Speaker 04:
Thank you, Your Honor.

[00:00:09] Speaker 04:
May it please the court.

[00:00:10] Speaker 04:
My name is Reid Allison.

[00:00:11] Speaker 04:
I represent Plaintiff of Helen, Brandon Webber.

[00:00:16] Speaker 04:
This case, fortunately for all of us, is a little more straightforward than the previous two.

[00:00:19] Speaker 04:
This is a civil rights excessive force, first member retaliation case.

[00:00:24] Speaker 04:
And again, hopefully, it is captured on body cams and dash cams.

[00:00:29] Speaker 04:
The district court here made three main errors in granting all defendants summary judgment on all plaintiffs' claims.

[00:00:37] Speaker 04:
First, the district court gave no weight whatsoever to the defendants' repeated statements in their lead up to their use of force against Mr. Webker, essentially saying that they were going to arrest him for mouthing off or talking back to them.

[00:00:52] Speaker 04:
It's a series of statements that builds

[00:00:56] Speaker 04:
as he essentially gives them more of that during the DUI stop.

[00:01:02] Speaker 03:
Is the retaliation the arrest or the amount of force?

[00:01:08] Speaker 03:
The amount of force, Your Honor.

[00:01:08] Speaker 04:
We do not have any lawful arrest claim, and we didn't try to piggyback one via the First Amendment retaliation.

[00:01:16] Speaker 03:
In this body of law, can the arrest be the basis for the First Amendment claim, even if there's probable cause?

[00:01:26] Speaker 04:
Yes, since media that is a couple of years ago in the Supreme Court, there is the idea that if you can prove that similarly situated people, so here Brandon Webker wasn't wearing a seatbelt, so they could have arrested him for that, and then he attempted to get out of a car multiple times when they told him not to, so maybe could have arrested him for that.

[00:01:47] Speaker 04:
If you could prove that usually in similar circumstances, very, very low-level crimes, non-biological things, they don't arrest the people.

[00:01:55] Speaker 04:
ticket them, or maybe they say, hey, don't do that again, be better, have a good night, sober up in his context.

[00:02:02] Speaker 01:
Well, that may be some of their practice, but that's not any legal right to be treated that way.

[00:02:08] Speaker 01:
Pardon, Your Honor?

[00:02:10] Speaker 01:
Officers may often just say sober up, behave yourself, don't do it again, but there's no legal right by the motorist for that response by the officers.

[00:02:20] Speaker 04:
No, Your Honor, I was just saying, under the address, if you could prove

[00:02:24] Speaker 04:
that typically officers do something short of an arrest with people who they don't need to be able to roll back and forth with, then you might still be able to have a First Amendment retaliation claim based on your arrest, even if there is a probable cause for something like a seatbelt violation or stepping out of a car when told not to.

[00:02:43] Speaker 04:
It didn't used to be the law, but Nieves is, I believe, two years old at this point, and there is language in it that says if you could prove that out,

[00:02:50] Speaker 04:
But we don't have that here.

[00:02:52] Speaker 03:
Our first-member retaliation plan is based on use of force, and that use of force is... So basically just a gram analysis for the level of force that was used here?

[00:03:06] Speaker 04:
That's where it gets tricky, Ron.

[00:03:10] Speaker 04:
So the retaliation analysis, of course, is protected speech, and then

[00:03:17] Speaker 04:
done something that police or any other law enforcement officer or any other public official does something that would chill a person of ordinary firmness from continuing.

[00:03:25] Speaker 04:
So I think the district court correctly said that being tased twice and pepper sprayed and pulled out of a car and ending up on your head in the road would chill a person of ordinary firmness.

[00:03:36] Speaker 04:
Where the district court got off the train was at the Butforth Causation Park.

[00:03:42] Speaker 04:
And there the error was, the district court said because these officers had probable cause,

[00:03:48] Speaker 04:
they would have used this force regardless.

[00:03:52] Speaker 03:
And that's... What's the flaw in that analysis?

[00:03:55] Speaker 03:
Because, I mean, there can be a supersede, I mean, there can be all kinds of animus ahead of time that at some point you can have a lawful arrest that escalates, and then we have to decide whether the escalation was retaliatory animus or objectively reasonable under Graham.

[00:04:15] Speaker 03:
So where did Judge Johnson

[00:04:18] Speaker 04:
Essentially, the language of the District Court's order seems to imply that if an officer has probable cause, they can use whatever force they want to, maybe implicitly as cabin within RAM, and it ought to be a very least cabin within RAM.

[00:04:34] Speaker 04:
But the way the District Court did it here is it started with excessive force and convinced itself that there was no excessive force, and then gave somewhat short shrift to the First Amendment claim because it's like, I already said the force was objectively reasonable.

[00:04:48] Speaker 04:
And therefore, you know, how do I get to that plus probable cause, as the district court said, does away with any version of retaliation.

[00:04:56] Speaker 00:
And he relied on Hartman case for that, didn't he?

[00:04:59] Speaker 00:
No, Hartman.

[00:05:00] Speaker 00:
Hartman.

[00:05:03] Speaker 04:
That I don't recall.

[00:05:08] Speaker ?:
So the trouble with the excessive force analysis goes to the district court's second error.

[00:05:14] Speaker ?:
And that's, in general, the district court viewed the video here

[00:05:17] Speaker 04:
in the lightless table for the officers instead of the lightless table to Mr. Rucker.

[00:05:23] Speaker 00:
How did it do that?

[00:05:26] Speaker 04:
The most important, I think, two ways are by essentially aligning one of our claimed uses of force, which is Mr. Rucker was pulled out of that car.

[00:05:37] Speaker 04:
The officers had their hands on him all the way into the road.

[00:05:41] Speaker 04:
He hits his head first.

[00:05:43] Speaker 04:
That's the use of force.

[00:05:44] Speaker 04:
The district court described that.

[00:05:47] Speaker 04:
as plaintiff came out of the vehicle head first and can be observed hitting his head on the road and crying in pain.

[00:05:54] Speaker 04:
The agency there, we've written the officers out of what happened here.

[00:06:00] Speaker 00:
And so the district court essentially... The district court said that the officers pulled him out and after he resisted being arrested, he stayed in the car and resisted coming out.

[00:06:10] Speaker 00:
They pulled him out and the district court relied on the Frazier case to say,

[00:06:16] Speaker 00:
That was reasonable.

[00:06:17] Speaker 00:
That wasn't excessive.

[00:06:19] Speaker 00:
And then, in fact, they gave several warnings before they pulled him out.

[00:06:22] Speaker 00:
They said, get out.

[00:06:24] Speaker 00:
We're going to arrest you.

[00:06:25] Speaker 00:
Get out.

[00:06:25] Speaker 00:
Get out.

[00:06:26] Speaker 00:
Numerous times.

[00:06:28] Speaker 00:
And we said in Frasier, basically, if you're going to arrest somebody and you've got a basis to arrest them, which they did, and you give them warnings, they need to get out of the car.

[00:06:38] Speaker 00:
If they don't get out, eventually they're going to come out forcefully.

[00:06:41] Speaker 00:
And that's the only way to get them out.

[00:06:42] Speaker 00:
And that's what the district court said happened here.

[00:06:45] Speaker 04:
Your Honor, what I'm getting at is that the district court delighted hardware.

[00:06:48] Speaker 04:
They didn't just pull him out of the car, they pulled him head first into the road.

[00:06:52] Speaker 04:
It's our intention.

[00:06:53] Speaker 04:
We believe a reasonable jury could view the video as showing that.

[00:06:56] Speaker 04:
That's the use of force.

[00:06:58] Speaker 04:
And it's excessive in this context because he was suspected of, at the very most, non-violent misdemeanors.

[00:07:07] Speaker 03:
The biggest thing is- So we're circling back to Graham, that seems.

[00:07:12] Speaker 04:
I think it's probably inevitable in this context that there's a fair amount of overlap between the force analysis in the First Amendment and the Fourth Amendment context.

[00:07:22] Speaker 04:
But the most important factor in Graham, which this court and the Supreme Court has said over and over and over again, is the threat posed.

[00:07:31] Speaker 04:
And here, Mr. Wetker, it's on video, he is maybe annoying, he is maybe being naughty, but he never threatens anyone at any time.

[00:07:43] Speaker 00:
Could you talk about Frazier, because that is the case that the court relied on, and it does seem pretty close factually.

[00:07:49] Speaker 00:
Why did the court rely on that improperly here?

[00:07:52] Speaker 04:
I would say that the better analogy on her is, could you talk about Frazier first?

[00:07:59] Speaker 00:
Tell me why it's not a plethora.

[00:08:03] Speaker 04:
I actually, if I may beg your pardon, I'm... You don't know?

[00:08:05] Speaker 04:
No, no, I need some water.

[00:08:07] Speaker 00:
Oh, okay.

[00:08:08] Speaker 03:
Help yourself, please.

[00:08:14] Speaker 03:
I've been there.

[00:08:16] Speaker 04:
Yeah, infamously, it's a Marco Rubio moment.

[00:08:21] Speaker 04:
But Your Honor, as to Frazier, I beg your pardon, but I don't have an answer to that off the top of my head.

[00:08:28] Speaker 00:
Do you know what the facts were?

[00:08:30] Speaker 04:
I don't remember them, no.

[00:08:31] Speaker 00:
That's important, because the district court relied on it here to find no constitutional violation.

[00:08:36] Speaker 04:
That's true, Your Honor.

[00:08:41] Speaker ?:
Our view is that the analysis

[00:08:43] Speaker 04:
hinge on the threat that Mr. Webb proposed, as it always does in the excessive force context.

[00:08:49] Speaker 04:
And he didn't oppose one.

[00:08:50] Speaker 04:
The district court concluded, essentially as a matter of law, that because Mr. Webb was drunk, that he was therefore a threat.

[00:09:00] Speaker 04:
And to reach that conclusion, the district court relied on a case called Palacios.

[00:09:06] Speaker 04:
That case is nothing like the case in front of us.

[00:09:09] Speaker 04:
That case was officers responding to a call of an intoxicated person who had a firearm and had threatened multiple people with the firearm.

[00:09:19] Speaker 04:
That case does not hold that because a person is drunk, they are a threat for purposes of the grand factors.

[00:09:27] Speaker 01:
Isn't it a reasonable assumption the officers could make that a drunk person has less inhibitions, less restrictions on their behavior, and therefore is a more unpredictable and therefore more dangerous person?

[00:09:43] Speaker 04:
I'm with you on all of that.

[00:09:45] Speaker 04:
Through unpredictable, dangerous, I think the officers also need to rely on.

[00:09:50] Speaker 04:
It's a 10 or 15 minute stop.

[00:09:53] Speaker 04:
Mr. Wecker hasn't

[00:09:55] Speaker 04:
You know, he's talked back to them repeatedly.

[00:09:57] Speaker 04:
He has not even said anything that's threatening.

[00:10:00] Speaker 04:
So I think the officers also have to take that into account when they're trying to figure out what the threat of the situation is.

[00:10:06] Speaker 04:
And here, Mr. Webkirk doesn't make any threats at any point.

[00:10:11] Speaker 04:
And even when they go hands-on with him, he is not trying to kick them, bite them, you know, hit them, do anything.

[00:10:19] Speaker 04:
He's staying in the car because he's very scared because

[00:10:22] Speaker 04:
They yelled at him repeatedly to stay in the car, and then 10 seconds later they're like, okay, you don't want to stay in the car, you're under arrest, and then five or 10 seconds after that, big pepper's breaking.

[00:10:32] Speaker 00:
Sorry to keep going back to Frazier, and I think I may be thinking of another case where the district court, I apologize, I'm not positive the district court referred to Frazier, but it is a case that

[00:10:43] Speaker 00:
where a woman was in the car, refused to get out.

[00:10:46] Speaker 00:
Officers ended up warning her and warning her that they were going to arrest her.

[00:10:51] Speaker 00:
She needed to get out of the car.

[00:10:52] Speaker 00:
She didn't.

[00:10:54] Speaker 00:
They ended up pepper spraying her and pulling her out.

[00:10:57] Speaker 00:
And in that case, we made the point that if someone's inside a car and you give them fair warning several times, as they did here, even more than in that case,

[00:11:10] Speaker 00:
there's really no other way to get someone out rather than forcefully.

[00:11:15] Speaker 04:
They're gonna come out forcefully.

[00:11:19] Speaker 04:
Perhaps so, and there are hands-on ways to do that in a safe manner that didn't really happen here.

[00:11:24] Speaker 04:
And also, there are two tazings.

[00:11:27] Speaker 04:
Mr. Webber was tased in the chest while he was in the back of that car.

[00:11:31] Speaker 04:
That's incredibly dangerous.

[00:11:33] Speaker 04:
And in the context of a non-violent misdemeanor who had never threatened anyone and at worst was

[00:11:39] Speaker 04:
trying to stay in the backseat of a coupe.

[00:11:41] Speaker 04:
I vaguely remember, I don't think it's Frasier Rio, I don't remember the name of it myself.

[00:11:45] Speaker 04:
I think it's Morris.

[00:11:46] Speaker 04:
Yes, it is Morris.

[00:11:49] Speaker 03:
I was on that panel.

[00:11:51] Speaker 04:
The woman was the driver, which made a difference.

[00:11:54] Speaker 04:
I believe she was still essentially in charge of the car, so at any moment she could have driven away in a way that was dangerous for everyone.

[00:12:02] Speaker 04:
That's also true of Clifford versus Davis.

[00:12:04] Speaker 04:
The woman there was the driver.

[00:12:06] Speaker 04:
They pulled her over.

[00:12:07] Speaker 04:
She stopped.

[00:12:08] Speaker 04:
And then when they told her to get out of the car, she actually rolled up her own window and locked the doors and refused.

[00:12:14] Speaker 04:
And they pulled her out of the car.

[00:12:15] Speaker 00:
Clinton, isn't that Clinton?

[00:12:17] Speaker 04:
Clifford versus Davis.

[00:12:19] Speaker 00:
Is that the one where there was a broken window and they pulled her through the broken window?

[00:12:22] Speaker 04:
Yes.

[00:12:23] Speaker 04:
That's Clinton.

[00:12:24] Speaker 04:
Yes.

[00:12:25] Speaker 04:
They broke her driver's side window and kind of yanked her out.

[00:12:28] Speaker 04:
They did not taste her.

[00:12:28] Speaker 00:
But one point that we made, and that is that there wasn't any warning.

[00:12:32] Speaker 00:
That happened immediately.

[00:12:33] Speaker 04:
Basically, they said, you know, essentially get out and they broke her window and... There was enough time, Your Honor, for her to refuse and to roll up her window and lock her door.

[00:12:47] Speaker 04:
And they said, get out.

[00:12:47] Speaker 04:
And she did.

[00:12:48] Speaker 04:
And then they angered her out.

[00:12:50] Speaker 04:
Also, she was not tased or was sprayed.

[00:12:53] Speaker 04:
The force here was even greater.

[00:12:54] Speaker 04:
Mr. Webker is not in control of this car.

[00:12:56] Speaker 04:
There's no indication that he's attempting to gain control of the car.

[00:13:00] Speaker 04:
He is a maximum passenger who maybe needs to come out of the car, but there are ways to do that that are short of multiple tastings and pepper sprayings and crowding around the door of a guy who you know to be drunk and who has wanted to go to the bathroom.

[00:13:14] Speaker 04:
This man wants to come out of the car.

[00:13:17] Speaker 04:
You step back and say, hey, we need you out of the car.

[00:13:20] Speaker 04:
He doesn't, but the way that it is approached is similar to Alan vs. Muskogee, Tobias vs. Husk,

[00:13:27] Speaker 04:
recently this court applied it in Denato Reed, the idea of creating the circumstances that necessitate the force.

[00:13:34] Speaker 04:
And that here is not Mr. Webber becoming a threat, because he never becomes a threat.

[00:13:38] Speaker 03:
I'm curious, are the First and Fourth Amendment claims really inextricably connected?

[00:13:46] Speaker 03:
I'm just trying to theorize if you lost on the First Amendment claim, can you still win, get a reversal on excessive force, and vice versa?

[00:13:57] Speaker 03:
I'm having a little trouble figuring that out.

[00:14:00] Speaker 04:
That's fair.

[00:14:01] Speaker 04:
It's not clear to me that the cases have helped us disentangle that just yet.

[00:14:06] Speaker 04:
I think it's certainly true if we survive on the Fourth Amendment plan and not the first, we can survive.

[00:14:13] Speaker 04:
I think it might be tough to find a set of circumstances where force was deemed objectively reasonable, but it was used in a retaliatory way.

[00:14:25] Speaker 03:
Because your argument is the force was chilling conduct for First Amendment purposes.

[00:14:30] Speaker 03:
And if the force wasn't, was reasonable, then it's not gonna, it's not gonna, it's not gonna chill your.

[00:14:41] Speaker 04:
Or it might chill you, but as an objective matter, we don't care, right, because the force was in self-reason.

[00:14:48] Speaker 04:
If there are no further questions, 20 seconds we're through.

[00:14:51] Speaker 03:
I'll give you some rebuttal.

[00:14:53] Speaker 04:
Thank you, Your Honor.

[00:15:12] Speaker 05:
May it please the court, I'm Deborah Hewlett.

[00:15:14] Speaker 05:
I represent the Appalachians, Luke Nelson and Bryce Norcross in their individual capacities.

[00:15:20] Speaker 05:
Mr. Thompson is going to argue on behalf of Evansville.

[00:15:25] Speaker 05:
Your honors, on May 20, 2018, no clearly established law under the first or fourth amendment would have directed these officers to act differently under the circumstances.

[00:15:38] Speaker 05:
Alternately, the officer's use of force was objectively reasonable under the Fourth Amendment, based on the totality of the circumstances, particularly Mr. Webker's conduct, actively resisting arrest.

[00:15:50] Speaker 05:
As per the First Amendment claim, Mr. Webker's speech was not the but for cause of the use of force.

[00:15:58] Speaker 05:
Turning to the Fourth Amendment claim, the record, particularly the video footage,

[00:16:03] Speaker 05:
reflects that the officers used objectively reasonable force because Mr. Webker actively resisted arrest by refusing officer demands to get out of the car and by physically resisting the officer's efforts to get out or to remove him from the car.

[00:16:19] Speaker 05:
The officers initially used verbal commands and minimal force and increased the degree of force that they used based on Mr. Webker's active resistance to arrest.

[00:16:30] Speaker 03:
It seems to me there was a lot of contradictory

[00:16:33] Speaker 03:
commands here and you have three officers for a simple DUI.

[00:16:39] Speaker 03:
And then for me the escalation starts when the two passengers were pepper sprayed.

[00:16:48] Speaker 03:
So stay in the car, stay in the car, and then you pepper spray them.

[00:16:52] Speaker 03:
And I haven't been pepper sprayed before, but I would think remaining in a closed vehicle after I've been pepper sprayed would be

[00:17:01] Speaker 03:
somewhat of a contradictory motive.

[00:17:04] Speaker 03:
And then we've seen the video.

[00:17:06] Speaker 03:
I understand the rest of the fact sequence, but it almost seemed punitive to keep him in the car after the pepper spray.

[00:17:18] Speaker 05:
Mr. Redker was informed he was under arrest.

[00:17:21] Speaker 05:
He retreated to the back seat.

[00:17:23] Speaker 05:
On the video, he was aware he was under arrest because he said to his father on the phone, dad, dad, I'm going to jail.

[00:17:31] Speaker 05:
And the door was open.

[00:17:33] Speaker 05:
The officers used some hand controls, and he stayed in the back seat.

[00:17:39] Speaker 05:
But when the pepper spray was deployed, the door was still open.

[00:17:42] Speaker 05:
On the video footage, Mr. Webker continued sitting in the back seat, speaking on the phone.

[00:17:48] Speaker 05:
And the only complaint was from the front seat female passenger.

[00:17:52] Speaker 05:
But the door was open when it was deployed.

[00:17:54] Speaker 03:
What did he do to deserve the tasing?

[00:17:59] Speaker 05:
After multiple commands to get out of the car, and he still did not get out with the pepper spray, the officers did warn him that get out of the car or you're going to get tased.

[00:18:14] Speaker 05:
Two officers from the Grand Norcross attempted to pull him out of the car.

[00:18:18] Speaker 05:
He actively resisted.

[00:18:19] Speaker 05:
That's apparent on the video at Norcross dash cam at 20 minutes and 46 seconds.

[00:18:26] Speaker 00:
They didn't attempt to pull him out, though, until after they tased him, right?

[00:18:32] Speaker 05:
They were attempting to pull him out of the car, and there was a physical struggle as he resisted and tried to keep himself in the backseat of the car.

[00:18:41] Speaker 00:
And that's the first time that he was tased?

[00:18:43] Speaker 00:
And he was tased during that struggle.

[00:18:44] Speaker 00:
He'd been pepper sprayed before.

[00:18:46] Speaker 00:
He doesn't get out.

[00:18:49] Speaker 00:
They start to try to pull him out, and there's a struggle.

[00:18:53] Speaker 00:
And then he's tased the first time.

[00:18:54] Speaker 05:
Then he's tased the first time.

[00:18:56] Speaker 05:
And the officer did hold onto him from the car to the ground.

[00:19:00] Speaker 05:
He also put his hands out to the ground that hit first to break part of the momentum.

[00:19:07] Speaker 05:
And then when he got to the ground, he continued to actively resist arrest.

[00:19:13] Speaker 05:
Officers did not have control of his hands.

[00:19:15] Speaker 05:
He was not in a prone position.

[00:19:17] Speaker 05:
He was moving around on his side, and that's when Officer Norcross deployed a taser the second time.

[00:19:23] Speaker 03:
At that point... Then he got a knee jabber, whatever you're going to call it.

[00:19:29] Speaker 03:
He was kneed twice by

[00:19:31] Speaker 05:
Almost simultaneously with the Taser, Officer McBride did two knee strikes, which was unknown to Officer Norcross or Sergeant Nelson at the time.

[00:19:40] Speaker 05:
They weren't aware of that until they saw the videos in the course of this litigation.

[00:19:48] Speaker 03:
This is a Graham case, right?

[00:19:50] Speaker 05:
It is on the excessive force claims.

[00:19:53] Speaker 03:
So for the first prong on the type of crime,

[00:19:59] Speaker 03:
That probably favors Mr. Webker.

[00:20:02] Speaker 05:
The interference of the peace officer favors Mr. Webker.

[00:20:05] Speaker 05:
But certainly, this is a case where Mr. Webker was actively resisting arrest, both by refusing officer commands and by physical resistance.

[00:20:15] Speaker 00:
What about the second prong, Graham, immediate threat to the officers?

[00:20:20] Speaker 00:
Why would that strongly favor him as well?

[00:20:25] Speaker 05:
He did not threaten officers.

[00:20:27] Speaker 05:
The district court made that finding.

[00:20:29] Speaker 05:
And I'm not aware of any evidence in the record.

[00:20:32] Speaker 00:
So the first two gram factors strongly favor, you agree they strongly favor the plaintiff?

[00:20:38] Speaker 05:
I think that the misdemeanor, the officers for the misdemeanor, that changed the course of arrest simply because Mr. Webker would not comply with verbal commands.

[00:20:51] Speaker 05:
He would not comply with minimal force.

[00:20:54] Speaker 05:
Sergeant Nelson grabbed his arm at the beginning and said, give me your arm.

[00:20:58] Speaker 05:
pulled away and were treated in a backseat.

[00:21:00] Speaker 05:
So they tried minimal levels of force that were gradually escalated to get him out of the car and effect the arrest.

[00:21:08] Speaker 01:
But the primary barrier... How long did this all take place between the first request to get out?

[00:21:14] Speaker 01:
Because for a while they were saying, stay in the car.

[00:21:17] Speaker 01:
But when they first said, get out, to when he was tased in the vehicle, how long period of time was that?

[00:21:25] Speaker 05:
From the time he was informed he was under arrest,

[00:21:29] Speaker 05:
to the time he was handcuffed, I think approximately a minute past.

[00:21:35] Speaker 01:
My question was before the first hazing.

[00:21:40] Speaker 05:
From the entire traffic stop from the time they pulled over the car until I think the force was used, that's about 20 minutes.

[00:21:51] Speaker 01:
Well, that's not my question.

[00:21:53] Speaker 01:
My question was from the time they said you're under arrest,

[00:21:56] Speaker 01:
and he was in the vaccine and wasn't getting out until he was tased in the car, about how long.

[00:22:01] Speaker 01:
We can tell from the video, but I haven't done that yet.

[00:22:06] Speaker 05:
It's probably 40 to 50 seconds, because the handcuffing is about a minute from the time he's still under arrest.

[00:22:20] Speaker 05:
After the second teasing, Sergeant Nelson approached the car

[00:22:24] Speaker 05:
Mr. Wedker, who played with officer commands, he gave him his hands and his handcuff, and at that point no additional force was used on him.

[00:22:35] Speaker 05:
The officers perceived Mr. Wedker as intoxicated, belligerent, and combative, which added a layer of unpredictability to their decisions and the situation.

[00:22:51] Speaker 05:
May 20th, 2018, there was no clearly established law that would have placed the officers on notice that their use of force was unlawful.

[00:22:59] Speaker 05:
Mr. Webker primarily relies on cases where the officers used force on a subject who was not actively resisting arrest or who had been subdued.

[00:23:08] Speaker 03:
How do you distinguish Davis and Morris?

[00:23:12] Speaker 05:
In Davis, the plaintiff was not actively resisting arrest.

[00:23:17] Speaker 05:
And in Morris, the misdemeanor who was taken down was compliant and offered no resistance as well.

[00:23:25] Speaker 05:
So those are distinguishable based on the fact that Mr. Webker was actively resisting arrest and they stopped using force once he was subdued.

[00:23:35] Speaker 00:
Well, she, in Davis, she locked the car, refused to get out.

[00:23:40] Speaker 00:
Isn't that resisting arrest?

[00:23:42] Speaker 05:
In the data's opinion, it's not considered resisting arrest because she said that she simply wanted assurance that if she got out, she wouldn't be harmed.

[00:23:52] Speaker 05:
And there's not a fact like that here.

[00:23:54] Speaker 05:
He was told multiple times that he needed to get out of the car.

[00:23:59] Speaker 00:
Well, unfortunately, he was also told multiple times that he needed to stay in the car, and he couldn't get out.

[00:24:05] Speaker 00:
That is true.

[00:24:05] Speaker 00:
I've been a little confused.

[00:24:07] Speaker 05:
That is true.

[00:24:08] Speaker 05:
He was told multiple times not to get out of the car.

[00:24:12] Speaker 05:
He was warned if he got out of the car again, he was going to go to jail.

[00:24:16] Speaker 05:
And then he was informed he was under arrest, at which point he did understand he was under arrest, and he was ordered multiple times to get out of the car.

[00:24:25] Speaker 05:
And he wouldn't.

[00:24:26] Speaker 05:
And he wasn't only physically resisting at the point where the officers tried to pull him out of the car.

[00:24:34] Speaker 05:
Sergeant Nelson and Officer Norris

[00:24:36] Speaker 05:
recognized that Mr. Webker was taking measures to keep himself in the backseat of the car, like holding onto the seatbelt, putting his legs under the driver's seat to brace himself in the car.

[00:24:49] Speaker 01:
So that contributes to the active resistance to arrest, too.

[00:24:52] Speaker 01:
So what is the Graham factor that you're relying on almost exclusively?

[00:24:58] Speaker 01:
It's just the resisting of arrest, right?

[00:25:01] Speaker 01:
Is there any other part of the Graham four-part test that you think is strongly in your favor?

[00:25:07] Speaker 05:
I think the actively resisting arrest is the strongest factor in our favor.

[00:25:11] Speaker 01:
That's the only one.

[00:25:11] Speaker 01:
That's the only factor that would measure your way, really.

[00:25:17] Speaker 05:
Yes, as well as the totality of the circumstances.

[00:25:20] Speaker 05:
The fact that Mr. Webker was intoxicated, belligerent, combative.

[00:25:26] Speaker 05:
The officers didn't have a different way to get him out of the car.

[00:25:31] Speaker 01:
Probably not established the way I understand the record.

[00:25:34] Speaker 01:
He did nothing to combat or to strike out or to do anything, any expression of violence to the officers.

[00:25:40] Speaker 01:
Am I wrong on that?

[00:25:42] Speaker 05:
Only physical resistance, which is part of the active resistance to arrest.

[00:25:50] Speaker 03:
OK.

[00:25:51] Speaker 03:
On the First Amendment claim, Jordan's a pretty good case for them.

[00:25:56] Speaker 03:
How do you respond to that?

[00:25:58] Speaker 05:
When the events in this case occurred in May 2018, a retaliatory use of force was not clearly established in this circuit.

[00:26:05] Speaker 05:
We submitted a 28-J letter regarding the Hoskins v. Withers case released earlier this year.

[00:26:12] Speaker 05:
That case examined events in November 2018 and found a retaliatory use of force had not been clearly established as a First Amendment violation.

[00:26:24] Speaker 05:
November 2018 time point was after the events in this case.

[00:26:29] Speaker 05:
So the law was not clearly established that retaliatory support violated the First Amendment.

[00:26:36] Speaker 05:
And the court can affirm on any basis in that record this issue was argued below regarding the absence of clearly established law.

[00:26:46] Speaker 03:
But didn't Jordan hold that in that case that a retaliatory arrest in 2018

[00:26:54] Speaker 03:
could support a First Amendment claim.

[00:26:58] Speaker 05:
There's no retaliatory arrest claim in this case.

[00:27:00] Speaker 05:
It was retaliatory use of force that plaintiff pleaded, and that was already below.

[00:27:06] Speaker 01:
You're distinguishing between retaliatory arrest and retaliatory use of force?

[00:27:12] Speaker 05:
Yes.

[00:27:13] Speaker 01:
Yet those are both forceful actions against the defendant based upon a retaliatory motive.

[00:27:21] Speaker 01:
Why should we treat one different than the other?

[00:27:24] Speaker 05:
Well, for one, a use of force doesn't take into account the officer's subjective motivations.

[00:27:30] Speaker 05:
But also, for a use of force claim, at least an excessive force claim, probable cause to arrest is assumed.

[00:27:38] Speaker 05:
And so that wasn't the issue here, because the plaintiff never made an unlawful arrest claim or retaliatory arrest claim.

[00:27:47] Speaker 03:
In Jordan, did the officers have probable cause to arrest the plaintiff?

[00:28:00] Speaker 05:
The officers do not have probable cause to arrest in the Jordan case.

[00:28:07] Speaker 05:
And I'd like to yield my remaining time to Mr. Thompson.

[00:28:11] Speaker 05:
For Evansville, we ask the court to affirm the district court's judgment in favor of the individual defendants.

[00:28:18] Speaker 05:
Thank you, Your Honors.

[00:28:19] Speaker 05:
Thank you.

[00:28:25] Speaker 02:
May it please the court?

[00:28:27] Speaker 02:
My name is Tom Thompson.

[00:28:29] Speaker 02:
I represent the town of Evansville in this matter.

[00:28:34] Speaker 02:
Is the court's well aware if this court affirms the holding of the district court in regards to the individual officers?

[00:28:44] Speaker 02:
That is the end of the analysis concerning municipal liability, and you must likewise affirm the holding of the district.

[00:28:52] Speaker 01:
That's not necessarily true.

[00:28:54] Speaker 01:
For the individual officers, strictly on the grounds that there was no clearly established law, does that mean we have to rule for the town as well?

[00:29:04] Speaker 00:
No, Your Honor.

[00:29:05] Speaker 01:
Yeah, so it's not exactly true.

[00:29:07] Speaker 01:
If you find, if you... If we say there was no violation by the officers, then that does get the town out.

[00:29:13] Speaker 01:
Correct.

[00:29:13] Speaker 01:
But you're safe, but if we rule for the officers, then the town wins.

[00:29:18] Speaker 01:
That's not right.

[00:29:20] Speaker 02:
And if you affirm the holding of the district court below, which I believe supports that there is no municipal liability because there is no constitutional violation of deprivation of Mr. Webker.

[00:29:37] Speaker 02:
And in this case, there is no municipal liability, even if you were to reverse the district court's ruling,

[00:29:48] Speaker 02:
In regards to the individual officers, there's certainly enough in the record that this court could find that there is no municipal liability.

[00:29:57] Speaker 02:
First of all, there's a custom practice, policy, or procedure that has been identified by... You looked at the video, haven't you?

[00:30:09] Speaker 03:
I haven't, Your Honor.

[00:30:10] Speaker 03:
That doesn't look to me like the optimal way to handle a DUI.

[00:30:17] Speaker 03:
Is that the way Evansville officers are trained to handle these types of situations?

[00:30:23] Speaker 03:
Is that the policy?

[00:30:25] Speaker 02:
The record is that the officers and the chief of police testified that the officers acted, concerning the use of force, acted in accordance with the policies of the town of Evansville.

[00:30:42] Speaker 02:
And there's more to the analysis than

[00:30:44] Speaker 02:
whether or not this was the policy or procedure that Evansville adopted, either officially or unofficially, it still has to be the moving force behind the alleged constitutional deprivation or violation.

[00:31:02] Speaker 03:
So the stop was by the books?

[00:31:05] Speaker 02:
I don't know if the stop was by the books, but certainly the issue of the use of force

[00:31:12] Speaker 02:
in regards to Mr. Webker's first request, repeated request to get out of the vehicle, told to stay in the vehicle, and then eventually arrested.

[00:31:25] Speaker 03:
So the pepper spray, tazine, takedown move, knee strike, those are consistent with Evansville's

[00:31:34] Speaker 02:
I think Evansville calls for a Evansville policy and the appellants never identified what policy, custom or procedure they are alleging was the moving force behind the alleged constitutional deprivation.

[00:31:55] Speaker 02:
They just say policies and procedures of the town of Evansville.

[00:32:00] Speaker 02:
But as the court is well aware, the analysis doesn't stop there.

[00:32:05] Speaker 02:
Even if they identify a policy, they still have to prove delivered indifference.

[00:32:11] Speaker 02:
Whether it's under a failure to train, failure to supervise, negligent hiring, they still must show that Evansville was aware of

[00:32:21] Speaker 02:
a pattern of torturous conduct and that they ignored it and knew that it would likely result in harm to the plaintiff in this case.

[00:32:33] Speaker 02:
Thank you, counsel.

[00:32:34] Speaker 02:
Your time has expired.

[00:32:34] Speaker 03:
Thank you, Your Honor.

[00:32:37] Speaker 03:
Ali, two minutes.

[00:32:38] Speaker 03:
Ali.

[00:32:44] Speaker 04:
Your Honor, the plaintiff in Pelham doesn't say that this was by the books of Evansville.

[00:32:48] Speaker 04:
The chief of police of Evansville says it's by the books of Evansville.

[00:32:52] Speaker 04:
As I recall from his deposition, I think his only critique was that the officers shouldn't have said the things that they said, including, I'm going to take my coat off and fuck these people up, and I'm going to arrest this guy for being mouthy, things like that.

[00:33:04] Speaker 04:
He thought the optics of that were bad.

[00:33:06] Speaker 04:
But otherwise, he agreed that this was how we do it in my town.

[00:33:10] Speaker 04:
As to the clearly established point about first member retaliation connected to a use of force, clearly established is there to protect officers so that they can make reasonable mistakes.

[00:33:25] Speaker 04:
If you have a retaliatory use of force, that's not a mistake.

[00:33:29] Speaker 04:
That's an intentional thing that you do.

[00:33:32] Speaker 04:
So if you frame the clearly established question correctly, which you have to from Toler versus

[00:33:37] Speaker 04:
Would any reasonable officer know that you cannot use force in retaliation for a person's protected speech?

[00:33:45] Speaker 04:
I would hope any reasonable officer would know that.

[00:33:48] Speaker 04:
I don't know that there's currently a case that says that, but once you frame it properly, it strikes me as somewhat obvious.

[00:33:55] Speaker 01:
The officers are saying it's not because of his speech, it's because he wouldn't get out of the car because of his conduct.

[00:34:04] Speaker 04:
Yes, Your Honor, but it's a motivation question, which is classic jury question.

[00:34:10] Speaker 04:
And we just skipped that part because the district court said those statements don't matter for excessive force.

[00:34:17] Speaker 03:
And once I say it wasn't excessive force, then I'm also going to say it's not first-member retaliation.

[00:34:21] Speaker 03:
It's almost like a superseding causation argument, isn't it?

[00:34:25] Speaker 03:
There is some force to that.

[00:34:28] Speaker 03:
You can have all kinds of animus, and then at some point,

[00:34:31] Speaker 03:
you know, use of force can be entirely appropriate for the situation.

[00:34:38] Speaker 04:
I agree with that generally, Your Honor.

[00:34:40] Speaker 04:
I think it would be still a jury question.

[00:34:42] Speaker 04:
I don't know if there's like, as a matter of law, there would be something that would cut off what looks like retaliatory motivation.

[00:34:51] Speaker 03:
I mean, I suppose it's a matter of degree, but he gets out of the car with the coin and a gun at him, you know, and even though they've been

[00:35:00] Speaker 03:
wanting to eff him up for a long time, then they're going to use a lot of force to handle that.

[00:35:07] Speaker 04:
I stand correct in your honor.

[00:35:09] Speaker 03:
That's a perfect example.

[00:35:11] Speaker 03:
Obviously, I would cut off any statements they had made.

[00:35:13] Speaker 03:
Why not here?

[00:35:14] Speaker 04:
It is a matter of degree, but... I just don't think Mr. Whitaker does anything but mouth off, and that clearly annoys them.

[00:35:23] Speaker 03:
He worked out.

[00:35:24] Speaker 03:
So he wins on gram.

[00:35:25] Speaker 03:
I mean, he wins on gram.

[00:35:27] Speaker 04:
Yes.

[00:35:28] Speaker 00:
He does resist arrest.

[00:35:30] Speaker 04:
Yes, he attempts to stay in the back of the car.

[00:35:33] Speaker 04:
For your honor, you're asking about the time between your under arrest and being tased.

[00:35:39] Speaker 04:
I look back at the court's order, because obviously I don't have the body cam in front of me.

[00:35:43] Speaker 04:
And it looks to me about 30-ish seconds.

[00:35:46] Speaker 04:
It's kind of tough, because there's three different videos.

[00:35:48] Speaker 04:
So you've got to remember which site is which to add the details.

[00:35:51] Speaker 04:
But I believe it's about 30 seconds.

[00:35:53] Speaker 04:
And it's about 10 from your under arrest to Indian peppers creating your first

[00:35:59] Speaker 03:
I think why don't you go ahead and wrap up your times over.

[00:36:02] Speaker 04:
For all those reasons, we ask that you reverse the district court's order in its entirety.

[00:36:07] Speaker 03:
Thank you, counsel.

[00:36:08] Speaker 03:
Appreciate the arguments.

[00:36:09] Speaker 03:
Your excused case is submitted.