officer armstrong could see or knew that she was not threatening injury knew that any of that ahead strike was not justifiable under the circumstances no life threatening attack however of course we didn't have a graham standard here we had a essentially a due process down or going back really to johnson versus wood and judge wilson's justification for that is where we didn't have a seizure because of course she turned a gram analysis so this claim that because she kept fleeing after she got hit and had does not stand up even really based on present the argument is made well this was an either an unintended or accidental use of use of force and none a know if it's true that officer armstrong testified i thought the shadows in front of me was the person who just kicked me in the growing but wait a minute he meant to swing his baton at what he was acknowledging was a person in front of course it happens to be fact this is an unique situation because the officers were trying to move people out of the highway or close to the highway up the hill and move them away and so is there any evidence to suggest that  mr armstrong really intended to restrain her liberty of movement in any significant way as opposed to just move aroud of the highway the first part of your intentionally trying to hit the head but what we know from evidence and i think on this particular issue you have to give the plaintiff the inference this on the evidence but his his testimony was that he had just been kicked in the upper leg or a growing area he was thinking he was being attacked by somebody he because of the sweat he could not see that's true literally who w there and he was acting in flailing about with an intention of protecting himself that in self defense oh that is not to try to put somebody in custody is that correct you are absolutely correct on your recitals of his testimony but when you look at the other evidence which is this jackson's testimony the testimony of officer da the law according mr jackson they had eye contact he could see her here because we're not supposed to be looking at the subjective intent of the officer and the seizure analysis or case and nelson versus city of davis it's ninth circuit argument that we wrote the supreme court has repeatedly held that the fourth amendment now says is not a subjective one the intent the camps and or the fourth amendment is the intent that has been conveyed to the person can fr and the criterion of well for restriction and freedom of movement is not an invitation to the subject to attend and other words are supposed to look to whether what's her name jackson mos felt free to leave and i think looking at that intent you know you can make arguments about that but there is you know why how could we say she didn't feel free to leave when she in fact left well she knew she was being confronted by police officers she knew that the police officers wanted her and the others off the freeway and in fact she knew they pushed off the freeway she certainly knew that her freedom of movement was restricted right could not go back onto the freeway for example the officers that made that clear and that she basically could only go in one direction yes she had some freedom of movement basically turn around and and run which is what she did here but to suggest that she was free to go wherever she wanted to go as you would i mean you have what was the case so it was in order for somebody to feel free to leave they have to feel free to leave in every direction including on a freeway well i don't i don't know i don't think you'll see any cases that says it in those language in those terms when you're talking about consensual encounters in the street where the courts found that a person was free to leave you not talking about it in the context of law enforcement in force the national jihad look but even if a law enforcement even on a street encounter if somebody somebody may feel free to leave and three hundred forty degrees of the three hundred sixty degrees but they're never going to feel free to leave by walking right through the officer who's standing in front of them and that can't be relevant right well sure of course you know walk through the officer skase the context here was it's obvious that the officers were number one seeking did have the protesters everyone get off the freeway move up the invent man number two anyone in that situation now realize that's what the officers were doing that they may also be subject to further detention and arrest because of everything that was happening this is not like at all the encounter you have said is an officer on the street some questions are asked no orders argument the name here that blocking the freeway was lawful or justified obviously law enforcement response was appropriate but that doesn't give an officer to the right to use excessive force and when you focus on what happened between ms jackson moser an officer armstrong what you have is an officer intentionally swinging his baton under circumstances these circumstances where he admits that no you could not use an intentional you've got to go to a jury on the fourteenth amendment claim and you lost correct correct right but that required a malicious shelling in this is where when you all the evidence about the officers intent that judge session  described after leaving the record becomes very important to the fourteenth in the stand but has judge worn off point out in quoting from the davis decision those factors the author's intent gee i thought you know i was just trying to protect myself acting in good faith without malicious intent are irrelevant to the objective reasonable is test judge wilson's order which obviously you've read you know that you know well it's been what district court opinions one from kentucky one from cargo one of which was just an accidental door slam in other words there's no cases that say did well because the person got away that's not a seizure right in fact  from from from the position that i'm checkley here are the cases say yes and i mean of course we see lots of cases that say that what's different about this case is why we're here is that she did not go to the ground she was not knocked unconscious correctly the decision by judge fletcher person already in custody already seized and gets beat up now is there a seizure from the beating well i think you have a very good argument doesn't restrict his freedom of movement right he's already strapped to a chair and this course as you know is a fourth amendment violation under these facts it's a fourth amendment analysis so the point of these cases is that just because someone manages to get away as happened here doesn't mean it's now a fourteenth and then analysis and not a fourth minute when exactly obviously dealing with police presence and reacting to the police and reacting to the show of police authority and none of which were disputing his being inappropriate in terms of the show police authority what they were doing she's obviously reacting to all of that you know under the under the show of police authority an actual force is used against a person it is still a fourth amendment secret so she says she's not in custody but but there are a lot of factors present which suggest perhaps to a reasonable person that they're not free to leave there's the show of force by police twenty or thirty officers who are approaching these demonstrators the  threats and violence and the language that's being exchanged apparently that's really quite disruptive are you suggesting that maybe she felt that she was not the take we are free to leave despite the fact she left but not particularly free to leave based upon the assessment of these other factors like police showing a particular aggression etc sure the totality of circumstances and i know i'm over my my time so i'll make it a very very but that just to use a more obvious example the prisoner who's been serving time in the state pen and is outdoors performing some type of work you know he knows he's got free to leave right just turn around and walk away but because of the nature of the work he's doing he's outside he walks away and leaves you know he the prisoner was still under restraint although obviously in the circumstances he was he was free  may please the court i am deputy attorney general molly murphy representing officer gino armstrong first i wanted to address a point that the court made about the decision nelson vs city of davis nelson is distinguishable from this case in several respects including the fact that the student who was shot in the i buy a pepper spray pellet collapsed on the ground and stayed there it was a party the police were trying to disperse and the students movement was terminated so yeah i know that that's why i asked that hypothetical question but the question for me is is that a distinction without a difference well it's not because  don't see what you have to say about that so so in this case of course the appellant did feel free to leave and she left and so did her brother and so did all of the other protesters the only place they were prevented from going was the freeway which everybody's prevented from running on the freeway that was obviously you know legal place to go in two thousand and fourteen when this incident occurred there was no case instructing peace officers that they were prohibited from swinging their baton is one place like deer was two thousand and fourteen to protect themselves when they were assaulted during a caddick protests qualified immunity bars the first and fourth amendment claims all witnesses here while witnesses here and grae that this incident happened within two seconds c h p officer john armstrong was kicked at and below the belt by ms jackson moser's brother who was wearing boots to kick was painful and caused officer armstrong to wince and step back the pain that he felt was a four on a scale of one to five he expected more blows and he once to defend himself counsel if we agree with you either that there was no seizure or they know for fourth amendment purposes we don't even need to read the court reached the question of qualified that unless there's a specific case in point an excessive force cases that are clearly established to the officers that their conduct was illegal then it's necessary to role for the defense and that's why i bring it up  time there was also a first amendment claim in the plaintiff did not meet those elements either i can proceed with the first amendment claim or qualified immunity please as the court  claim she had to show first she engaged in constitutionally protected activity second the defendant's actions would chill a person of ordinary firmness from continuing the protected activity and third that the protected activity was a substantial motivating factor of the defendant's conduct plaintiff failed to show that she was engaged in protected activity they were illegally on the freeway i'm really just interested in that if there's principle that makes that distinction as to the fourth amendment claim right your honor if you look at the case broward versus county of the inyo a supreme court decision it talks about how there has to be an intentional acquisition of physical control by the law enforcement officer and in this particular incident obvious armstrong never had physical control he was kicked he was in pain he reacted as long as the time it landed within two seconds and that was the end of it so there's no physical control here brower also said seizure does not apply to an unknowing act it's true he did know he was swinging the baton but he thought he was under attack at the time he didn't know or intend is the court is discussed to detain this particular plaintiff and these questions are sort of gone to the jury no because the plaintiff didn't have any evidence to give there's a distinction between seizure your without force and seizure with force well and brand land that was a traffic stop case in the supreme court ruled that the passengers were seized as well as the driver of the that was the case with the not really because again that was a case where the suspect or the juvenile was tackled by police and at the point of the juvenile was tackled to the ground and they had him and they held him then he was seized  i think this is the case with where he dropped the just the drugs before he was tackled so there was no seizure when the police were pursuing him at the time that he dropped the drugs did you move for summary judgment on qualified immunity grounds we did your honor but with paul fight immunity that you know the constitutional issues are tied up in it as well and i believe the district court found that that there was no evidence for a rational jury to determine as to the know we didn't it's our position that there was the record clearly stated grounds for a firm and son qualified immunity as well as constitutional issues that i think review do the pill how could we consider that  now because the court could affirm the granting of summary judgment based on the fact that the record clearly shows a qualified immunity would apply so you're looking at the district court opinion and you're seeing judgment on qualified immunity because of its analysis of the constitutional question that is that correct so you think that suggests that we have the authority to rule to show either of first reports amendment violation however you know it's there is ample evidence and briefing in the record to show that the court also had qualified immunity  i qualified immunity grounds to be granted a summary judgment motion i qualified immunity grounds and this motion on the merits would not be in front of  us the court granted summary judgment as to the fourth and first amendment claims based on the fact that no constitutional claim had been stated and then allowed the plaintiffs leave to amend late in the case to state a fourteenth amendment claim which was tried to the jury and the plaintiff has and challenge the jury's verdict all right thank you counsel thank you  factor here intentional acquisition of physical control i would submit however brief that physical control is so long as there is intentional application of police force  that satisfies the seizure stand so then you are focusing in the pond what the officer intended or thought well if you're talking about intentional exertion of force to control a person  we have an officer accidentally doing something take the door example the think with the kentucky case ok you open the door and someone standing here and you hit them is that a police use of force i would i would say it's not because although the officer intended to open the door he was not intending to use force ok just an accident but what graham is talking about where you say you don't look at the subject of intent they're talking about the specific intent to do harm to the militias that sort of thing and once you have an intentional that is the officer intended to use physical force whom you satisfied the intent requirement in front of him now he had various explanations as to why it wasn't one full or why it was an accident or whatever but he intended to swing the baton the jensen versus oxnard case where the police standoff situation one officer shoots a figure in the doorway killing the figure turns out it was another police officer now obviously the shooting officer never intended to shoot a fellow police officer but this court held it was a seizure because he did intend to shoot the figure in the doorway so i would say the evidence shows a fourth amendment seizure and titian all use of force which however br did with the use of physical force that made contact against mr armstrong on a time i could talk a lot more but you have other things to do i know right thank you very much