of the macarthur justice center for the appellant matthew jones your honour's our position this appeal is a narrow one that defendant true big failed to satisfy his burden under the procedure that this court has adopted to set a side a jury verdict based on qualified immunity in kerman in law the court recognized that a jury's verdict as to excessive force necessarily turns on the jury's view as to what a reasonable officer would have perceived in the circumstances respect for the jury verdict and for the plaintiff's th amendment right precludes the court from substituting its view of what a reasonable officer would have perceived for the jury therefore when a defendant seeks to set aside the verdict based on immunity he has the burden to submit the necessary questions to the jury and to establish that the jury viewed the facts as he says it did where the defendant fails to submit the relevant questions to the jury the court must view the fact in the best possible way for the plaintiff so i want to focus the court specifically on the nd teasing in this case because we see that is the narrowest ground for reversal that prevents the court from having to deal with any of the other two issues we raise dealing with the st tasing and with the inconsistency with punitive damages so let me begin with three premises because i think these will really help focus the court and narrow the issue here st everybody appears to agree that it violates clearly established law to inflict gratuitous force against someone who's already been incapacitated nd defendant true big has never contested that the jury could have concluded based on the evidence before it that mr jones was incapacitated and that it's jury verdict could be based on the fact that a reasonable officer in the circumstances would have known he was incapacitated and rd defendant does not even argue that his all on the law and nd that kind of perverse consequence of such an argument and then rd i can talk about the specific facts here but st on the law the court in soto considered the question of whether tracy decided before the events in this case clearly established a violation were officers tasered a man who had just been taste and in that instance not only was he not handcuffed but the court viewed subdued in a much more kind of logical way than is the person handcuffed in that case in fact the individual it was uncontested was starting to rise to his feet in this case it is there was no evidence that at the time of the nd tase mr jones was doing anything but length flat on the floor probably still writhing from the st taste of the language of the circuit the district court noted that in its opinion i think several times that was just at the time of this right before the nd today's after the st days he was risings is nobody says that was looking at what was the law as a one thousand right that's right your honor and this is a really important point so you know if we were coming to this court and saying these officers should have read soto and had notice based on soto obviously we'd be in trouble but that's not what we're saying we're saying look soto looked at what tracy decided before this case clearly established and so to look at a case you know bring in kit tracy i think tracy has many facts that are particular rise to this subdued and you know the defendant and in sotto made the exact same arguments here they said we just got there you know we didn't know what was happening we didn't know if he was armed and the court said whoa whoa whoa whoa whoa disputes a fact for the jury to resolve and it would be let me ask you about that because i'm troubled by the lack of harmonization between the district court opinion and jury's verdict in one of the things the district court said below and there's no basis to find that tenet was an unreasonable officer on the jury in fact was instructed on reasonableness as part of the excessive force claim and they certainly found that he wasn't reasonable so that's that failure to harmonize to carry out the verdict is what is most concerning to me what do you think is the crux of why that particular part of it should be reversed i can go along with rapidly evolving facts as to what's going to happen next quickly a nd time just to be sure but the jury came to a conclusion it seems to me that the district court went and different direction so i think that's exactly right i think that's a very problematic aspect of the district's opinion it didn't cite any of this court's cases reconciling the two as opposed to and i think the district court with respect misunderstood its role here it seemed to say look the jury told us that he failed to appreciate that this person  wasn't resisting and that i get to decide whether that was reasonable and what i think he failed to recognize was that the jury had and you're correct your honor the jury was specifically instructed to assess the reasonableness of the force judge from the perspective of a resisting and that no force was needed to he in fact was no longer resisting and north no force was needed three that gave a verdict that he used unreasonable force and in fact reckless force sufficient to compel it to word punitive damages now our position we have no burden in this case but our position is that one plus two may have equal to three here meaning that the jury's view may well have been that a reasonable officer in these circumstances would have perceived that mr jones was subdued now if defendants want to come in here and say one plus two doesn't equal three they had to submit a question to the jury to establish that that is our position in this case and i see my time is up so i'll reserve the rest of  good morning your honor is may it please the court susan paulson on behalf of the city of new york your honor it's this is far from an obvious case in which it any competent officer would have known that the use of the taser to bring to an end a prolong its nd tase the nd time he says really the core so i think is a factual issue and a legal issue the factual issue is the district court multiple times and the decision suggested that after the st days the plaintiff was rising from the floor and that that justified the nd tace and i think you will concede that that's incorrect your honor i will concede that but as your honor noted it is on hunter very good that at the time of the nd tave he was unconscious and in testimony of a carrows testimony jones's testimony but because there was no question on this we have to take the plaintiff's version and the facts most favorable to him ok i'm slow correct me if i'm on the most favorable facts to him are he was taste three cartridge right for five seconds correct for the st ace yes yes here on the testimony was that he was flat on the ground on his stomach with his arms spread right there and then tase the nd time yesterday after the officer reassess the situation correct so my question to you is is it is it the city's position that if someone is on the ground on their stomach having been tasered with their arms out that it's reasonable for an officer to tase that person again that's the question your testimony as to whether or not one second that all that means is that he knew his arms weren't immobilized yes and the oh there was no testimony that i see there's no testimony but according to him he didn't say i was moving my arms in any way so the fact you can feel things in his arms doesn't give an officer a justification to tase him again ron or what gives it just officers it just we cation to tase him is that it's undisputed that the officers were saying give up your arms give up your arms and that the apparent reined in the jury find my special and to robin tori that he wasn't resisting the jury did find that he wasn't resisting but that doesn't mean that he was complying your honor those are not inconsistent or didn't say we're saying that his version of the events he was absolutely compliant after the st days there's he didn't even say i refused to give my arms he said my arms were outstretched and it was no testimony by anybody that they tried to cuff him after the st stage right your honor the event it happened very rapidly here he was warned that he was going to be taste he was instructed to give up his arms he did not give up his arms he insisted he did not want to be arrested he was tasered and very rapidly assessing whether or not the officers could then because we find that mens rea is reckless or intentional and where does the district court get the ability to say things like there is no basis to find that tenet was an unreasonable officer how can the district court kind of deviate from that that's what the district court is looking at is whether it was objective really reasonable for the officer to believe that his conduct was lawful it's looking into whether or not there's a mistake of law or not a mistake of fact not whether or not  the excessive force inquiry was objective lee reasonable to believe there was a use of force but whether or not you know it least some reasonable officers would have believed that using the taser to overcome this is stain resistance  situation was constitutionally permissible and the district court properly evaluated that looking at whether or not there was clearly established law that under these circumstances an officer in the officer true big situation would have known was incapacitated the the only evidence although it's not clear that the officers knew was that he wasn't incapacitated in the certainly wasn't compliant he had not yet the officers testified that they were not yet able to stand which i thought we were agreeing that we have to the facts that we have to decide this case on is that he was compliant after the st days we his version of the events but he who is that he was on his stomach with his he doesn't say he was compliant but what did he say that he did that was noncompliant he said that he was on the ground with his arms out he did not say i then obeyed their command to give up my arm in order to enable them to put the concept that was there's no evidence that they gave him that he that he says they gave him a command after the st to use your say had well there is no it he does not say i gave up my arms there is no evidence suggesting that he did give up his arms he has been continuously instructed to do so so inferring that his compliant at that stage testimony was outside no opportunity to give up his arms after the st he did not say he had no opportunity your honor and my arms were spread on the ground and then i was hit with another and they were not immobilized when i was hit with another taser almost immediately so he did not your honor  say they asked me for my arms or anything like that it appears from what we have to look at the testimony the most favorable light to him and i understand that there was different testimony from the officers but the questions were not asked of the  argue that even looking and you are correct that we look at the testimony in the light most favorable to the plaintiff and i would say we can't read testimony into the record that does not exist even reading the testimony in the light most favorable to the plaintiff qualified immunity is proper here when at least some reason all of us who do believe that using a taser was necessary to overcome there is no clearly established law either in this circuit or in another circuit that says that using it on an individual is unrestrained and not compliant is beyond the bounds of the th amendment but isn't there isn't there case law for that that says if somebody is not resisting arrest you cannot just gratuitously tase them your honor it's not as simple as that your honor the case is that look at whether or not the force is gratuitous whether or not the individual is restrained whether or not the individual is incapacitated and whether or not the individual is compliant looking at whether or not their wrist resisting arrest is too generalize believed that he still needed the force to effectuate and we know that he was unrestrained it's undisputed and here and there your honor disputes whether or not there's evidence that he was subdued but the only evidence in the record as to whether or not his subdued is his own testimony that his arms were not immobilized combined with the officers testimony and undisputed facts that they were able and what's he's cuffed he's unsub is that what the argument is not at all your honor there are other cases in which the p what the facts show or don't show but if in fact a person is on their stomach with their arms out and offering no resistance and that how many officers were there at the time five officers were six officers six officers surrounded by six officers your position is that you can tase that reasonable officers could disagree about whether you should tase that person again is that your yes your honor in that situation in that situation it's reasonable where he is under strain there is no evidence that he is in the giving up his arms are unable to cut cuff him they have six officers he so let me just say you say in some circumstances it would be excessive the jury didn't find that it was gratuitous but they did find it was excessive and they did punitive damages well your honor i'm not sure they found it was gratuitous they may have found it was reckless here it's not abundantly clear how the jury arrived at that but i did to support punitive damages i don't believe the record supports that it was e damage award but your honor unlike the cases that the appellant relies on he wasn't sitting on the counter in a fetal position with a shirt over is it like in the brown case he wasn't on the floor unresponsive and soiling and self there certainly was no evidence here that he was compliant that he was subdued and under these circumstances it was no it's no reason officer it's or it's not it's not th maybe you can just describe the timeline here what exactly happened and one question that you might want to bear in mind it's a question that i have how is it the judge hodell didn't grant  qualified immunity before the trial and just describe the events and the issue and what makes this reasonable in context sure your hon reasonableness is we now in this context can mean many things we're not talking about the reasonable man we're talking you are the range of possibilities which might be quite different one from the other which would be reasonable in context so describe the setting for me timeline that was faced by judge cotto before before he made this decision after all after a jury verdict encountered the suspect in the stairwell and what looked to them like a drug transaction an exchange of pills for money they moved out into the hallway to officers who had been doing the vertical patrol and at know about him if anything you're on to this point point all that they knew was what they had observed was him in the sterile with another individual an apparent exchange of pills for money or so is the idea or the handcuff his left arm he turns towards the officers as he turns towards the officers one of the officers sweeps his leg out from under him and the officer and mr jones fall to the  ground they are trying to get the handcuff on the other wrist he is resisting and he is resisting is holding his missionary in the physical setting again here they are in a narrow hallway which is described as five feet wide at this point there are two officers present getting his left arm out from a spot in order to complete the handcuffing after struggling for a period of time they call for backup assistants the st pair of backup officers that arrive is the undercover officer and undercover officers partner they continue to try the meanwhile the mr jones is saying i i won't be arrested i don't want to i'm not i won't going to jail i don't want to go to jail and is refusing repeated instructions to give up his arm the nd set of officers arrive they use the baton to try to release his left arm from under his body in order to effect the arrest they are unsuccessful in doing so there's no resistance growing or still officers also used the pepper spray to try to get him to release his arm they are unsuccessful at this point the rd set of officers lieutenant true big and his partner arrived on the scene at this point  pounds he's a large individual he's lying on the ground he has no arms they know he's not armed he's all your honor the st set of officers who frisked him no he's not armed there's no information the record as to whether any of the other responding officers were troubador eyes he sees that there are four officers with a large individual in a narrow hallway who are trying to effectuate arrest and unsuccessful in doing so he warns mr jones give up your arm i'm going to take his you mr jones says i don't want to go to jail or i won't go to jail or something to that a factor i don't want to be arrested and return true big at that point the officer still surrounding him and unable to get his they say that it wasn't until a nd taser correct your honor they do not describe an attempt to put the handcuffs on his rest after the nd taser then the officers are successful and moving his left arm behind him it requires two sets of handcuffs because he's quite a large individual in order and then he stands up and they walk him out that is the chronology you might have to remind me of your full question you know that's them that in order to that arrive at punitive damages they needed nominal damages did they concede to give zero dollars twenty five cents they would even give a dollar a nominal damages there so the jury also had sent a jury question asking can we send a message if we with our verdict today ultimately that question wasn't answered clearly here the jury recognized that it appears that the jury recognized that this was not a gratuitous brutal of force as in some of the cases nonetheless the jury appears to have been uncomfortable with the use of the taser for that reason they worded punitive damages as in response to your honor's questions it's not abundantly clear how they arrived at a p reasonable under these circumstances in a quick succession with somebody who had been resisting arrest for a prolonged period of time when there were a number of officers on the scene who were unavailable to effectuate the rest to continue the use of force absence of cases this case is that the opponent relies on as i said are cases in which the force was gratuitous in which the individual is incapacitated which the individuals are strained and i would say the more recent cases from this court if you look at the crowd case if you looked at them was got a case which came after the events that are not controlling on this but they indicate that it was not established law in in two thousand and eighteen that teasing is if you look at mrs kennedy if the law year old in the back because he was ignoring instructions to drop a rock and then testament a nd time in order to get him in cuffs and what this court found is that reasonable officers could have disagreed as to whether to take were necessary to accomplish their arrest and the even the three judges of these circuit could not all agree that it was clearly established that it was that using that using a taser was that was violated the th amendment there was a dissent in that case plainly none of the cases in the circuit and none of the cases in the other circuits of the plate the pollen draws the court's attention to demonstrate that clearly established law would have put an officer in  close this case was let's try to pick certain facts that were good for us here and there let's look at what the defendant said at testimony what this court has said is not that we're going to relive again the trial in the appellate court not that we're going to try to start making assumptions about how close the jury seemed to think the case was it said defendants if you have a jury verdict against you ask the question and what i did not hear my friend say was that they asked a question as to whether mr jones w incapacitated at the time the defendant true big decided to recycle the tape against him now let me just make sure i'm being clear here let's assume that defendant true big did ask that question let's assume that they asked would a reasonable jury have conclude circuits but but let's assume they ask those questions i think everyone would agree that it violates clearly established law so i think what that crystallizes is that the defendants are before this court asking it to assume one that they asked a question that they never asked and two that the jury answered it in their favor and this court does not do that it does not substitute its view for a view that the jury may have had just really quickly quickly to correct a couple of facts that were mentioned in the course of about more well we don't know and here's here's the most important point your honor is that if you think the timing between them is important then we win this case because what that tells you is that defendant truly had asked that question to the jury before this court could resolve that issue that was something the jury went through it was told to go to the deliberation room and it was left with this message this was this was plaintiff's counsel talking no objection from the other side no just no motion for for judgment on this basis or anything like that consider the image of true big standing over matthew jones face down on the ground not posing any threat taser prongs stuck in his back one thousand five hundred volts of electricity pulsating through his nervous system that's what the jury was told to go resolve that is what they almost certainly resolved in coming to a conclusion of excessive force and punitive damages and anyways they say the defendant certainly hasn't shown through any sort of interest or that that's not what its conclusion was worry so no but let me just show how this is just an effort to stretch the facts in the light most favorable defendant true big they say that's a curious verdict but what actually happened here was the jury said can we award punitive damages without awarding any sort of compensatory jail judge cotto instructed them no actually you have to have at least nominal damages to do that they went back to the deliberation room they could have come back and said in that case we decided no excessive force they didn't do that they said we're standing by what was this case about and he says it wasn't about damages it was never a case about damages he gives up essential in from the jury this was a case about me doing what any other person could do insisting on the basis for my arrest and going limp and it wouldn't end with being beaten in this way which the jury could have found and being tasered twice including once when he was laying incapacitated still writhing on the ground and i think that's the that's the crux of this case we do think it's a narrow procedural ruling of the defendant not protecting his rights by asking the question perhaps because he was afraid what the answer would be to the relevant interlocutory i would say there are some special circumstances here where even though it's a narrow case we would really urge the court to issue a presidential opinion in this case and the reason being that presidential opinions near a qualified immunity really carries special importance and we're also dealing with a case here where the defendant is saying this is not clearly established and all the other may please the court to move or for petitioner roger allen roger allen as the united states citizen on the undisputed indisputable facts applying clearly issued presidential decisions from this court he's a citizen york they lived in guyana moreover and this became clear in our motion exhibit either the court accepted and our reply brief his mother was never served in new york she was served with processing guyana that means two things one even under the i would say despicable nine hundred and seventy five in one thousand nine hundred and seventy six custody standards that new york had which is the whole reason the law changed in all fifty states there was no subject matter jurisdiction and even under those standards at the time even under new york law and the c p l are someone in a divorce action where there was going to be a custody to agree had to be personally served in new york as a result the minimum now would we have to send it back for a hearing because it's not undisputed obviously we did get additional submission which is significant saying that she was in guyana but the divorce decree says she was served in new york so it's in there at least be some type of hearing to see which one is correct re three reasons why the answer is no not some speculative fact there needs to be a genuine issue of material fact nd iran or the only place that the de force decree determination that she was served in new york could come from is the court file that's exhibit either pages eight  nine the affidavit of service excuse me eight dollars ten cents the affidavit of service at ten and then the application for the default judgment strangely termed an affidavit of regularity by the father's attorney at eight and those say that  that the the mother and roger were never in new york at all so there is no issue of fact let alone a genuine issue of material fact doesn't need to be transferred to the eastern district at all and so ultimately and sister was not there to get the derivative citizenship right sister was determined to be a us citizen and we put this in our brief because we think it's important contacts the government says somehow again the burden at the  i j level or the agency levels preponderance of the of the evidence but my opponent has said look he didn't meet his burden somehow the government itself determine for twenty five years this is motion exhibit a and b that the court has before it that the court accepted that roger was a u s citizen and that includes the department of justice the immigration naturalization service the judge who sentenced him in the eastern district of north carolina even said it and it wasn't just these random determinations of low level persons back in the old ins days the district adjudication officer was the person responsible at the local federal level for making these determinations and so we think it's undisputed and there doesn't need to be a transfer the bottom line is against that set of facts it's really an easy case there's no disputed facts and you apply that the framework set out in garcia that's informed him and go what a court a new york court because that's where roger lived at the time and by the way one and one additional undisputed fact there's no there's no dispute darcy is different in ways that make this a stronger case garcia there was a real issue about where he lived on the upper presented to the embassy in georgetown they admit him with the understanding that he's going to go live at seven hundred and eighty five dollars hopkinson in brooklyn and there's no doubt about that the school records the documents and the admission information six order to be enforceable there's no doubt in our mind at least even under the one thousand nine hundred and seventy six standards for the reason i indicated that it wouldn't but under the u c c j that went into effect in one thousand nine hundred and seventy eight it certainly wouldn't be followed and the only thing that anyone below said about why garcia doesn't control is well in garcia and actually in but go the u c c j was in effect both the time of the original custody order and then the time of  potential derivation that's a distinction without a difference do you see c j it was such a watershed important event and if you look at all domestic relations law seventy five c scuse me seventy five b the purpose of the statu it says the things that we've been explaining in our brief it was designed and passed by all fifty states to address the huge problem of parental kidnapping child snatching contradictory jurisdictional determinations the state law  so chaotic that the full faith and credit clause didn't even apply to custody terminations back then so to say that the new york legislature would pass and make affect of the u c c j and specifically provide provisions at seventy five for one jurisdiction applies seventy five dollars m for when a state court order of this state or of another state would be followed would not provide the standard for a prior custody order from years if not decades  earlier makes no sense sense to us at all of course in seventy five dollars dash z the legislature said this applies this sets the standard for jurisdictional determinations and finally of course the standard for derivative citizenship claims is the law at the time of derivation so we think what ultimately might have been when i got appointed over the summer perhaps a close case or an interesting case has become a crystal clear case there's no disputed facts whatsoever and you know with all due respect my opponent who's done a fine job if the court asks him what facts are in question perhaps the only thing you can say judge is well the cust the order itself says she was served in new york but the judge  answers that in my book were not the court's not required to speculate about her potentially being served in new york that wasn't put in the court file and of course that makes no sense i'm not sure ockham's razor is a legal principle but i think it fits pretty well here the most likely explanation for something is the one that makes the most sense roger is a us citizen thank you honor it's automatic it's automatic but if you want actual proof that you are in ny state citizen you have to actually apply and i think that's what happened here so if you want something that says your national citizen you have to actually apply to us c i s question and the defendant or other party is elsewhere and does not appear for whatever reason i mean i don't think the court would dismiss the case for lack of personal jurisdiction it would enter a judgment and if the absent party want to show off that judgment or lack divorce decree she left him the mother left the husband sometime in early one thousand nine hundred and seventy three so she presumably wants nothing to do with them and i assume money is not an object she's got the kids she's getting kids so there was no recent burn