you and our fourth case for this morning is casey burton against the city of zion ingredient of our case was removed from the case the essential ingredient of the case was that our client was in fear and that the officers knew or reasonably should have known that so you need to help me with a couple of things sure because obviously we're dealing with an objective test mindy's the officers see her recognize her realize that she's got the suspended license they activate their lights she refuses to comply by pulling over and then we have to take down where they tackle her instantly when she gets out of the fan but i need to know two things i think one of them is for you to explain to me as clearly as you possibly can what the non propensity use is of the two thousand and eight incident that you think should have been in hand and secondly how their knowledge that she may have been very apprehensive about police officers should factor in i can think of entire neighborhoods in chicago where we are told that most of the people who live there are very apprehensive about the police and  don't know how that converts into some objective expectation of police behavior as of the second component may take that i agree with you and i'm not arguing that and if one did argue that it would create a whole bunch of extrapolations that would be problematic for the police department and for everybody very difficult for the police department depend on person by person and neighborhood by neighborhood agreed ok i'm not arguing that all right what i am arguing relative to that is that what is absolutely  i about this case and what you probably haven't seen before in any other case that we couldn't find is that you had the same defendant same municipality and this plaintiff where five years prior in a traffic scenario case was a traffic scenario before the court the prior incident was a traffic scenario this officer tasered her and use excessive force when ticketing her got out of the car tasered her she was handcuffed and officers here who have explained that it's reasonable for those two officers to take into consideration this prior instance where excessive force was used by his dying cop what if what if those two officers had been on vacation during the entire time period when this second incident happens now they go on fake is it march thirteenth two thousand and fourteen so they're on vacation for the entire month of march so she's driving along somebody else recognizes her another police officer in zion there must be more than two of them and everything else happens she doesn't necessarily know that officer and how you pronounce his name record or richard at richard richard she doesn't know that so these complete lee different police officers follow her home jump on or throw down to the ground so on  so it really depends on your view on the i think a personal knowledge of officer richard and his involvement it falls out of the number i think of the second component what we what i said you before it's not our case because officer richard exquisitely knows the facts of this case he knows that he abused this lady previously and that his boss his department said so through an internal investigation who knows that make her refusing to pull over objective the reasonable not whether or not she pulls over subjectively reasonable that's not the objective reasonable test object a reasonable test says what a reasonable officer would know under the circumstances with the knowledge of that officer that's the tough and the question is does it come in and what's the reason for coming it and whether or not the plaintiff knows about it things like that but this case what's peculiar about this case it's been strictly inextricably interview interlink with these facts it's this officer and this plaintiff what i want to do initial officer myers spots her blowing a stop sign she just drives right through but that's obviously a traffic violation so he act he's followed her reactivates his lights looking else happens the way it happened even if meyers personally knows or richard joins the chase that this five year old incident was there when she was taste what did they do differently that they didn't do well in this case what transpired was that amber i'm sorry i remember what how you walk up to her you don't walk up to her and tackler to the ground when there's a dog right next door she was had anything to do with the old incident seems to me that was ridiculous anyway you know they she barely gets out of the car she stands there for not a second and all of a sudden boom you know three men are and only her to the ground and she also told them that she's having back surgery so this is something that should have been i have twenty seconds left this is something  should've been available for cross examination didn't you know did you have to go up and tackle her and all that sort of stuff i mean the lady is with all due respect freaked out and she has a right to be freaked out she's a woman who was abused however you want to characterize by an officer and  hurt his department set still so she has a reason to be frayed and the officer has a reason and he set a reasonable officer his words were in the deposition his words were reasonable officer would take this into consideration when interacting with her period so that is the grand test and he says that he'd be like his own expert at it it's an admission against him this is part of his test i just want to state the reasons why it it also is factually required so the first that she was in fear and that the officer knew she was in fear and should have been subject to cross examination for that and he admitted a reasonable officer should take into consideration that number three there's no explanation why she drove home it's a peculiar case i'm sitting here the jury it's in a vacuum i cannot argue i can't explain things next what she hiding something i don't know what she had danger did officers have a right to believe she's in danger is a danger now based upon these facts did she commit a crime i longer to stop sign that anybody has ever seen appears that so those are the reasons why it's interlinked ok two things i want to leave with is that she truly is and i just ranting as a lawyer he's truly benefiting from committing a prior bad act ok and the benefit is if i do it and and the cops hear about this oh well look i did this before the judge may keep it out in the next case and really we need to think about that because that's what happened in this case can't talk about it big so and lastly they benefited from that bad at the benefit from it because i can talk about what transpired in the case so he benefits as well as a matter of policy the deaf person just stop but of course the deaf person didn't hear him and so the deaf person doesn't stop after youse a number of times officer record then tackles the deaf person and handcuffs him suppose we find out later that off the officer record knew all along that the suspect was gas would you argue that the jury in an excessive force case may not find out that officer records knew the suspect was  propensity free inference that could be drawn you would then see if it was relevant under rule for all three of the point the point of the question if i understand it is that it's not for for be a role in that in this situation  knowledge right that i wasn't that's just based on knowledge of that and what i'm saying is that you wouldn't get to the second prong because i guess it wouldn't be a permissible inference under four hundred four b two if we're talking about the be it's really just part of the story of what happened you know he actually didn't or obviously in our case attacks ms burton knowing that this instability if you will it stay or the deafness or the fear of of the police because of the earlier grotesque overreaction to the boom box or whatever it was the sound  amplification it tells you why most people are fleeing police officers don't use their turn signals drive twenty miles an hour you know and make sure that the police are able follow them for couldn't be more than a minute and a half before she pulls into her driveway based on the dash cam kitten but she also took it very severe action no she didn't she was heading directly to her home they may have thought it was a base of action that she moves around so she can take the left well from their perspective which is the perspective that i think they already know they testify they think she's going holmes i mean isn't that excuse me officer sergeant arrington have pulled over str a sieve characterization counseling ask you when when in these sorts of excessive force cases when officers know of a suspects criminal history the the radio broadcasts notes that the subject has a history of resisting arrest in this thought to be armed that's all very relevant right there that all comes in absolutely even if the information was wrong right if they're that he didn't know what she was thinking i know many and i guess what i'm what i'm trying to understand is why you would be that is that there seems to be a little of a little bit of asymmetry here particularly given since we know that the bad information about the suspect comes in to help explain the officer's actions but this is in this very unusual case bad information about the officers doesn't come in to help explain the plaintiff's actions well the law i think is pretty clear and we cited smith versus city of chicago in our brief to the effect that the pla state of mind whether she was in fear and what she was thinking is not relevant if you're looking at the he doesn't need to know that it's just that the evidence when the jury is considering this the jury's trying to figure out this an objective lee reasonable set of actions for the police to take for them to follow her home for them the second she kind of falls out of the van  that i've watched the video this morning yes but three large men pounce on her throat were down to the ground well just standing there for half a second now when we get this full story why shouldn't the fact that there's this earlier incident just that she had perfectly good reasons for just getting to a safe place her drive away before she stops and then you know you can see whether the force used under the circumstances was an objective police reasonable level of force but with all due respect the law in the circuit is very clear that her perspective and what she's thinking is not made any difference i think if there'd been a stipulation that in two thousand and eight she had been stopped by the office or the names of zion police department and had been  conjunction with a sound amplification violation that might have been enough to allow plaintiff to get her side of the story and i'm not sure that it matters that officer record happened to be involved in the second one well they don't you know with the other thing is she maintained she did not know she was driving on a suspended license she didn't know what they were coming after her for according to her testimony and your honor if you look at spitzer's the city of chicago the point of so that you didn't know there were police officers and he didn't think that he did anything wrong either i mean i mean this is quite different i know that i guess but but what i'm saying what i'm saying is that it seems as though we are shifting the perspective from what the officers could see and hear and know incident did either side of this obviously was hotly contested in the district court did either side propose to the judge the kind of middle ground the chief judge would have suggested of a kind of slightly sanitized version of the two thousand and eight or incident in which richard's identity as the taser is not disclosed to the jury i don't believe that there was that he or she is pursuing is a well known drug dealer we take that into account if the police officer has actual knowledge that somebody typically has a gun runner you know we take that into account but i don't know why this actual what knowledge is different from that act well normally you don't have one person testifying to another person's state of mind no that's what it was all she saying is these officers had actual that the that the plaintiff that the officer knew or should have known that she was in fear i mean that's that's what that's what the evidence that he was trying to get in and presumably would have been getting in i was a lot better with the why wouldn't it be a reasonable inference for an officer who sees this rather unusual response to signals to stop if they had dash cam was a movie it wouldn't be the french connection the chase in the french connection or any stephen i mean movie from the sixty's i i get that that there was something unusual about that but again from the officers perspective they're seeing someone who is not obeying their commands and is doing it for a fairly lengthy time because just he was going at a slow not  i don't have much to add i'm curious if you have any questions that i can i do it goes back to my question about whether either side suggested the middle ground and the reason i'm raising that is because it seems to me the middle ground  all what i would say to you is that i voted for asli and aggressively tried to get this order changed and that was my focus when the court would not allow the order of the introduction of this evidence contrary to what she said in summary judgment which isn't obviously you know it's not the law of the case but my focus was on to reverse not to enter a stipulation i think i quite frankly and i would say respectfully i thought i was pushing the envelope and i don't  disrespectful to the trial court that was standing your suggestion now the words what we could offer this as a stipulation normally my experience the court will say well let's try to figure this out let's try to slice it up a bit let's try to make it so it's a little more knock us and less painful less prejudicial things like that and we try to stipulate i did not proffer stipulation you know that i didn't that you know the way this was presented i was trying to think like a trial judge for so you know it's being presented as you know kind of like baseball style arbitration all one side or the yet when there may in fact have been middle ground available you would be hard for me to say the district judge abused her or her discretion by not taking a route that neither side proposed well i didn't propose it because she repeatedly told me no and i mean i was there as i am here with you now looking at her and she was getting a bit perturbed with me for asking yet again because i tried to motions to reconsider and i'm i'm a trial with the judge that i don't