use of an arm bar takedown technique on mr neal during the investigation of a nine one one call where the police department received a report of a man with a gun outside of a local bar that had a history of criminal activity including drug use and drug sales as well as weapons compliance officer figure is entitled to qualified immunity for of force because at the time that the force was used there was no clearly established law indicating that it would be a violation of an individual's constitutional right to use that type of force and this incident happened in june of two thousand and twelve in june of two thousand and twelve i mean are you conceding that there was in fact excessive force used here no your honor because you went right to the clearly established question rather than the existence of a court were to now view that use of force as unreasonable the law was not clearly established at the time that that force was used to put reasonable officers on notice that it would have been a very distinct and different facts from this case in shannon you had an incident where there was a report of two women fighting in a bar when the officer arrived on scene the individual mr there was no report of weapons in that case there was no threat to the officer safety in that case the plaintiff mr shand was not a suspect there was no failure to comply with commands in that case and that case the officer used a leg sweep which was an untrained and authorized technique shannon was decided in two thousand and ten and since shannon was decided this court has decided to talk a little about the facts though at the time the arm neeld encounter with the police started when he was commanded to get out of the vehicle and when he got out of the vehicle he spent forty five seconds wandering around the car he watched the video there were dogs barking  officers yelling multiple commands it seemed quite reasonable to me that he didn't know which direction to go that he was can you know you had officers three different directions yelling for him to come here  way what mr what mr neeld did was he put the officers in a position where their safety was at risk by his wandering around the vehicle for forty five seconds his turning around and putting his back to the officers when they told him to come towards them with his with his hands raised he dropped his hands to his waist five times and when he did finally attempt to approach the officers he did was walking toward i don't know if it was your client who had the dog with the dog was right there is handled pretty visible to me and he also didn't match the description of the person who allegedly had the gun right there were descriptors that fit in descriptors that didn't what fit just the black car you know he was a middle aged african american male outside of bourne's bar in a black vehicle if you look at the video the minute you start off it appears there's a great deal of confusion there's dogs barking there's officers hollering directions three of them he starts one way looks back another way turns around looks at the other passenger apparently trying to figure out where am i supposed to go what am i supposed to do at least that's an inference you could draw and then in all that time you know you look at the officers are obviously concerned they've got heightened fear because  immediately their weapons are drawn it's a neighborhood that they're they feel somewhat safe in i get all that but at some point he turns he starts walking towards your client hands kind of up down zero point two him self a couple of times and then his hands are are up and in front of him as he gets there and he's grabbed and thrown to the ground now at some point all these early confusion isn't it too remote to really give rise to this reasonable fear on the part of the officer no your honor is not too remote because the officers are not required to abandon the information that they received with in a sixty second time period and pretend as though it didn't happen this court has even said most recently in kraven or versus schuster that officers may seize a person in order to ensure the safety of the public and or the individual regardless of any suspected criminal activity and an armed and passively resisting subject campos a threat in the cessna tating the use of a taser this court ruled in  allowing the use of a taser in march of two thousand and eighteen prior to that decision this court has twice ruled on the use of an arm bar takedown technique in circumstances  to this one the most similar being investor verses hallock which was decided in i believe august or july of two thousand and seventeen there was a report of a man at a bar with a knife when the officer arrived on scene the individual was seated in a vehicle and he was given five commands to exit the vehicle eventually he exited the vehicle once he exited the vehicle he was given two  or maybe three commands to put his hands up and get on his knees or get on the ground he didn't comply with those commands instead he turned his back to the officers and put his hands on the vehicle the officer officers with guns drawn knows and is the threat posed to the officer much greater investor since not there alone not necessarily because in this case not only did we have more than one officer on scene we also had an individual a third man that was in the car with mr with mr kneale that had not been secured the first the driver of the car exited the vehicle and he complied with all of the officers commands they were take and was taken into custody within twenty seconds mr kneale took almost a minute and a half to comply with the officer's commands to be taken into custody and during that minute and a half the third occupant of the vehicle mr levy was still on secured and by the vehicle and if the court would review that videotape again you can see there is a point at which mr neil not only walks around the car he walks behind the car and passes by the third occupant that is standing outside near the vehicle the officers are in a precarious situation they don't know where the gun is they don't know if mr neil has begun they don't know if the third occupant of the vehicle has the gun but what they do know is mr neil is not complying and they need to get control of that situation as quickly as possible and there alternatives are when mr neil gets closer continue to give him commands which he may or may not respond to like he failed to respond to in the first sixty seconds or take a risk that he's going to do something even more harmful to the officers than simply putting them at risk or get him under control as quickly as possible and the use of the arm bar technique is what the officer made the decision to  at that time and the fourth amendment allows officers to make that judgment they are allowed to make mistakes unless they are plainly incompetent and this court's decision investor where it granted qualified immunity to an officer that behaved in almost the exact same manner as officer fick indented it says that officer figured into was not behaving in a plainly incompetent manner and in fact had no reason to believe in june of two thousand and twelve that use of an arm bar technique on mr kneale would have been unconstitutional when we do with i think reality was more clearly established in favor of plaintiff in two thousand and twelve than it is today well i don't know that i would agree that the law was more clearly established in favor of the plaintiff in two thousand and twelve than it is today citing brown and she had him now for consistently for the last three years and  the first case in which this court looked at the use of an arm bar take the now and there this court upheld the use of an arm bar takedown on a belligerent suspect that was already in custody during the booking process that decision did not put officers on notice that it would have been unconstitutional to use an arm bar takedown on a path of really resistant suspect so shannon i think was pushed aside in terms the facts investor and this case are similar the risks confronting the officers in both cases are comparable plaintiff's noncompliance investor is virtually indistinguishable from neil's noncompliance in this case there is no justification for treating officer fitted into his use of force differently than the use of force investor and i respectfully ask that this court reversed the district court decision case in this case number one the vester case was not a case of mistaken identity so investor this was not a situation where they had the wrong guy in the vester case they in fact had the right individual doesn't help you much though because the officers didn't know that for sure at the time today that they had the right individual or the wrong individual they perhaps did that no one at the time but i would argue that that was that was the reality of the situation we don't look at it hindsight you're going to run out into the reasonable but mistaken belief doctrine anyhow if you go in a direction well but but another factor that i feel is important here your honor is that again no gun was was found on his person also when the vest or case there was unconscious for there was under be undisputed evidence that he was not compliant either the police asked him to get down on his knees and the undisputed record shows that he did not do that in this particular case i believe the undisputed record shows the opposite a judge gruner as you emphasize in the shannon vs koehler decision  neal's version of the facts here have to be adopted as true unless there squarely contradicted by other evidence in the case and here there is nothing to squarely contradict the evidence that mr neil was completely compliant with everything that officer figured doc the asked him to do and i think a reasonable argument could be made he wasn't compliant in the beginning you know you kind of walked in circles turned his back on the officers took a long time to walk toward off worse or it could empty him and he have a decent argument and we have the video so there really isn't a lot to display to be in dispute here we do have the video your honor and then we also have officer figured out he's testimony that ultimately my client was was compliant and then also your honor again officer testified that he was he was compliant while the officer testified specifically that when he asked mr kneale to put up his hands and walk towards him that that's what mr kneale ultimately did it i also think your honor that a reasonable lot why i took him down so hard at that point your honor i believe he was asked that it is deposition and his response was that mr neil was a distraction at the scene and he felt like he needed to get him to the ground as soon as possible but i also believe your honor that a reasonable officer at the scene would view mr neale's if we want to say delayed compliance not as passive resistance but as a confusion as to exactly what he was supposed to do as you alluded to your honor there were multiple officers at different positions shouting out various commands to him and i believe that the squad car video evidence clearly shows a a willingness to try to do what the officers were asking him to do but of confusion as to who was asking him to do it and what they were asking him to do so i believe that a reasonable officer him because he was surrounded by officers and there was a news camera news helicopter overhead at a video of it it showed that he might have just been he might have been putting his hands up you might have been slipping and falling and waving a waving the gun because he was he had lost his balance but they were granted qualified immunity i think in this particular case your honor when you view the squad car video evidence generally mr neil hands are up the entire time and it's pretty clear from the squad car video evidence that there's absolutely nothing in his hands while this event is is transpiring so i think the facts of th even come close to arresting the correct suspect the report came in that the gentleman who purportedly had taken this gun out of his black four door sedan and taken it back into the bar this gentleman was reported to be a large build and wearing a red and white shirt when mr neil stepped out of that vehicle it should have become abundantly clear to all the officers at wasn't the other passenger ok so i had the current standing behind the car because isn't that the guy that he went to and turned around and kind of walked behind as he was confused in the first forty five seconds well they were both the passengers were called out of the car at the same time and you're correct so there was a gentleman they both got out they were standing side by side to one another and then they called out black is correct what's going on at the time that the arm bar technique is applied as i understand it my recollection of videos that meal is obviously being taken down the drivers obviously in custody in the other passengers standing still by that car assuming he was not threatening anyone not resisting arrest and so on it was not reasonable for officer colder to use more than a minute to minimize force against him i would argue here your honor that mr kneale was not threatening resisting or fleeing from officer donte in the face of the command that he was given and i think your honor made clear in the shannon decision and i believe it was made clear in the brown decision as well that under these circumstances more than de minimus force should not be employed to arrest a suspect a suspect and in this particular case we have an officer who slammed mr neal to the ground front sight first to the pavement even though he was complying and earnestly seeking to comply with everything that the officers asked him to do his hands are generally raised during the entire incident there's clearly nothing in his hands while there raised again your honor i would we would argue that we have a suspect here who was not even passively resistant to what the officers were asking him to do the brown case is well your honor just to briefly quote moreover it is clearly established that force is least justified against nonviolent mr mean it's who do not flee or actively resist arrest and pose little or no threat to the security of officers of the public judge loken i know that you believe that there's a question there about sort of the security concern here again i would argue that once mr neil stepped out of that vehicle the perce safety risk should have been greatly minimized and officer figured dottie's mind if not eliminated because it should have been clear to him at that point that this isn't the right guy you've got the wrong suspect specificity with which the clearly established act has to be applied cases have to be beyond that and so forth has any circuit discussed what the implications of that scolding are when we when we come up trying to comply with the supreme court's new instructions in more recent cases and then we get a case like this that comes from the era that was what should we do with that well one point that this supreme court made clear in the popular your knowledge address that and in those terms i don't think we i have not come across a decision your honor i mean i conceptually more than tricky but very much so i would agree i would say that the supreme court in for size in the policy decision that a general statement of the law is not inherently incapable of putting an officer on notice it's applying that to cases where those factors are not crystal clear so i would agree with that your hon are two points that i would like to address first with regard to the argument that mr kneale was complying or beginning to comply or that he had only shown delayed complian when this court does not decide it hosea versus the city of st paul in august of last year this court granted qualified immunity to officers that were responding to a nine one one hang up call and encountered a man standing over his then fiance in a blade stance gave him according to the undisputed facts two commands to get down he began to get down one  first one hand on the floor and then the officers according to the plaintiff's version of the facts tackled him jumped on his back and in that case this court granted qualified immunity to those officers even though they recognize even though this court recognized that the whole data david hosea versus the of state paul even though this court recognized that the suspect or plaintiff in that case had begun to comply the court to lash out the officers to use the force they deemed necessary to control the individual because of the threat that in that case he posed to the fiance who was crying within striking distance of him the other point i'd like to address is the confusion aspect that plaintiff's raised with regard to mr kneale not quite knowing what to do and i would submit to this court as it has ruled in ehlers the subjective intent of the suspect is not relevant the focus has to be on whether a a reasonable officer could have interpreted that person the  or stand what you mean by that passive resistance one example of that is i believe it was the broster case where officers ordered an individual to move over in the vehicle to make not doing what the officers asked for instance investors and at some point thirty seconds earlier i agree with you at the point of the application of the force i didn't see any resistance at all neal was not entirely compliant but i would refer this court back to its decision in hosea where compliance had begun and this court authorized the use of force and grand qualified immunity because of the totality of the circumstances and the totality of the circumstances in this case warranted the officer making the judgment that force was needed to bring mr kneale into control so that they could continue their investigation and i respectfully ask that the this court reversed the district court's decision and grant qualified immunity to officer