he's number eighteen thirty one nineteen geoffrey saunders versus a j at all oral argument not to exceed fifteen minutes per side mr funk for the respect to the use of a taser in this appeal we are arguing that the district court applied the wrong legal standard in denying qualified immunity to officer ollie you're asking this court to reverse the denial of quote by me as a matter of law now the hardest question i soon you would agree not that that's not answerable but the hardest question has to be when he's handcuffed and he's still getting taste which you know i think that's fair to say those are fair inferences from  so how do you deal with that well your honor i think this court has on multiple occasions said that the mere fact that you're handcuffed by itself does not necessarily mean that you are no longer resisting and about g when he says stop what i need to do tell him to stop well it's like he's completely submitting at that point and saying just how do i get with this not without really goes to the heart of what i'm going to be arguing here it which is that indeterminate qualify meaning in the second part of the test the disc or played the wrong standard record because it's you focusing on it's not the intent of the suspect but more in terms of would it have been apparent to officer a leader who was essentially assisting officer reynolds was the one that was primarily clear to the officer that this is really where the position was what we do have is the video evidence in which the officers are clearly struggling with him in some fashion and the officer at the very end of the videotape yells a very loud voice head down hands down so clearly even if he's handcuffed he's still moving his hand he's still attempting to get up these are all things that would do a reasonable officer would indicate that the suspect was not was still struggling and was not fully decided after this particular use of the taser but here we have two instances that are really the subject of the district court's opinion the first one is the one where hits in the back that had no effect and on that question it really the suspect was simply turning  leaving the a permanent he admitted that in his deposition that he was told to come here and take his hands out of his pockets one one oddity of this case is you know it's a tab we all agree it's a test right and so when you're comparing this case to other cases one oddity of this case is that very early on it's apparent that he works there now there was this is not somebody who you the police have to worry about violated the law and is going to get away this is where he works there's no there's no problem here of coming back to this person so that the that i must say from the beginning of the case is very odd when you think about what so get we're doing a check on that person then i'll get to yours but to me the key there are really two key material undisputed facts that i think turn the whole qualified meaning at alice's and that is the moment when the first  undisputed that he was told to take his hands out his pockets and to come here instead he walked out the apartments and just or claire yeah i think you think that that means you can taste people whatever you want but i that's not the law well i think walking i  mean consensual encounters are consensual encounters the police on a lot of people when they decide they don't want to have the encounter right well your honor i'm following the i'm arguing based upon the time mr c v s point case whether it was clearly established a speeding was or some come a lot of violations while i don't i had to go back and look at that case to do that seems relevant there's no evidence he done anything wrong but the key thing though that in terms of the court's legal analysis where they said that we have not held  this was in october two thousand seventeen six circuit is not held that a suspect the use of a taser responds to a suspect who refuses to comply with an officer command and instead turns and walks away which is in flight which they did recently construed as being in flight that would be unconstitutional use a taser in that instance they didn't get into all the various facts they were focusing on back to my flight on the law the place from which you work well he's fleeing from the officer and then with the specter the pepper spray in the trying to do are doing because it never did like the law to speak of except every right well and then i think the key thing was he was refusing to take his hands out of his pockets i mean they were trying to verify from a safety standpoint s in response to a police command and that on that question this court helen thomas that that was not clearly is going to be have to address that question so you're not going to like this question but just hypothetically i think it's a tribal issue  fact an excessive force when it comes to one saunders's on the ground and handcuffed let's just say that's my view i'm speaking only for myself but let's just say i have to thank lee that's my view if that goes to a jury why do we have to segment this into three different claims that he brought just one claim of excessive force if that goes south as if we wouldn't allow the jury to hear the whole thing there were really any damages from the initial tasering he didn't even notice it so do i have to even address this question if i know you disagree with this but if one takes the view there's a tribal issue of fact that once he's handcuffed you can't keep tasing him do i have to address whether the actions before that are excessive force why do i have to do that well because i think that i need to instance in which to use force in fact i think it's even happens with respect to the taser which goes back to judge silas question about the number of times for example the first use understand your question are the words i'm i'm what i'm saying you're right right as to the first thing maybe i'll say you're right as to the second thing but i'm saying you're wrong when it comes to try to shoot fact it's not as if if that third one goes to trial that other evidence is to be brought in anyway right but i was going to broaden even if you were right as to the initial encounter a qualified immunity is really something that really vindicated needs to be heard on appeal at this point in time and so i think if he's in  would be arguing that if i was an trial i mean ultimately that's really the point is the court did that this court did that in this case the problem was the district court didn't apply the proper legal standard what the trial court did was essentially assume that if a reasonable jury could find that he was actively resisting arrest that's enough and i'm not actively resisting arrest that's enough and the question isn't was he in fact resisting arrest the question is would it have been apparent to the officer in officer position appear when i say apparent clearly obvious that that he was no longer resisting arrest and was complying with the officer's commands in this situation where you've got undisputed video evidence in that in the suspect admits or mr deposition that the officers were still having to get out had downed hands down that would indicate to the officer it would be reasonable for an officer not been in that position to believe that he was no longer that he was still resisting i'm getting confused  i thought what you were talking about a second ago was the first use of the taiz but that's not what you're talking about at this moment i was shifting to address the judge sudden it's a point that i believe the second use t in terms of whether it would have been clear or apparent under the existing case law that that specific use of force would be unconstitutional that's what the dischord didn't do it conflated the to test the first in the second part which the supreme court has time and time again that the courts cannot do that it's not a question of whether you have the right to be free from the use of excessive force it's whether an officer in that position would have known clearly known that the use of force was unconstitutional we submit on both of those questions that only be entitled to qualified duty and what if the reason with the officer and was at the door because he feared what was going to happen to him well again i think it's an objective standard so the question is would a reasonable officer so that they return an officer or a lead subject of intent or the suspect subjective intended it's whether a reasonable officer in officer ollie's position would have clearly known that the suspect was no longer resisting arrest and was intending to or was complying with the officers commands actually like and in this situation where you have an officer yelling in a loud voice head down hands down that would suggest to any reason why you were asking you  was asking about the first used the taser zero in the in the room ok in that situation same standard the question is would an officer in that position reasonably believe that the use of force was unconstitutional and when you have a case thomas be thank you thank you just to write i am sometimes wonder where information comes from but on the subject of the last event first i have to say that every time i watch that film i want to cry and oh you've been called the clearest video well you're irish the talking in the video is as follows officer one you got in kept sanders you got me cuffed officer two from the front officer one you got in kept sanders again you got me cuffed officer two yeah the next thing you hear is sanders step in man please officer to our right our right back up relax sanders please tell him to stop it and if you listen real hard you can hear some there and then you hear roll over on your side facing me roll over which way the left or right i mean how it could be said let's let's say you're right about this that that's a tribal issue of fact do we have to deal with whether the will say there's three incidents here michel one the pepper spray and asked we have to deal with the first two if there's a tribal issue factors to this point there's one count in the complaint it seems like the damages wouldn't i would just tell me the answer i think i have to deal with that judge oliver thought so because jody oliver broke it into three segments i think that the kind of commands us to deal with it in segments but i think if we do deal with it in segments it gets worse for officer hourly not better we're not going to say the easiest part of the case from your case which happened in smithy i'm always interested in hearing what i wrote but i also am even more interested in making sure lawyers understand the question i'm asking yet you honestly saying the easiest part of this case is the initial encounter i'm not supposed to when he's handcuffed and still getting a taste which is how you started out trying to figure out how much more to listen to you i can't believe that the first part is the easiest case for you i think the first part is easy for this reason there was nothing happening actually when officer only came to the door on a loud music complaint and there was no loud music a partner and wash his face he actually knew everybody almost in that building and i he he was a german is a journeyman carpenter he took that job after growing up  j housing without ever being charged with anything other than a traffic offense so the better mean we have a disorderly conduct plea of guilty so i mean why why when you combine that with thomas why doesn't that at least show the person that it's fits within clearly established even if you might be right that the law of of the circuit should be you can't taste someone just for walking away and even if that is the better reading of what the law should be we have this thomas case and and way this seems harder because he's admitted to disorderly conduct i don't think it's harder because the first of the disorderly conduct of the statute which  he admitted to involves simply saying something that somebody doesn't like if he said something that didn't like that would not i as the city of war and both of those cases occurred in twenty thirteen this happened in twenty fourteen in so ho on the key question of the thomas question what are those cases say that's different from thomas because thomas seems to say you can taste it's not clearly established what you can taste somebody who refuses to ban order and leaves in time miss the thomas didn't refuse to obey it's not the same situation at all if there is no comparison saunders was in his own workplace he said that the individual who happened to be a police officer seemed for some reason to be getting aggressive and bent out of shape he did what he should have done which is turn around and walk out the darkness hopeful questions realize yet i know that you're and fair to call thomas an escape type case but the words of fear that he was going to escape is that how you're thinking of it were his that's not what's going on here or why i think that is how i think of thomas thomas was in fact laying he was running away from the officer in the officer was chasing him that is different from this case where the victim plaintiff uses good charge mint and decides he's just going to turn around and walk out the door he knows the building he walks out the door he walks into the hall the officer chases him follows him into the hall actually i brought but don't have time to give it to you the portions of the transcript of his deposition where for instance he's asked if officer ali gave them any commands he says no in if the defendants want to say that he that mr saunders didn't take his hands out of his packets there arguing with the evidence he says he did take his hands out of his back as he was leaning against the wall put his hands back in his packets was looking down he looked apt to see the officer cracking his knuckles making faces and suddenly holding a taser when he sees him holding the tas write it he was physically scarred but not permanently injured certainly and not killed think i so scar from the taser shot yes from the taser schatz and don't forget when the what's happening in the film when you hear him groan very loudly towards the end of the film he is being dr stand up under his jacket by officer ali so that taser is on his back and he is lying down face down on the floor you can see a lead over him and that is what's happening at the end of the film when you hear him cry out  the other thing what is it that he did that led to the admission of disorderly conduct because i mean when you read his deposition here you're not seeing anything that amounts to disorderly conduct so that's there must be some part of it that some if you recall c m a j so overreacted to this i think to protect officer ali but that's another he was charged with burglary he was charged with a burglary for entering hoover wilson's apartment that case that charge was now a before trial he was charged with assault on a police officer that charge he was acquitted of he was charged with obstruction of official business that charge was reversed on appeal ott and was pending retract all when it was suggested by the prosecution that if he would plead and by the time these cases tried hopefully that charge will be expunged i shouldn't say that so two to finish this i you know the argument about what might have been clearly established but i think we have two cases that at least two cases that show it's clearly established there are a lot of cases in which smith and aldrich cases yes and there aren't a lot of cases i think there's no argument about the fact that it was clearly established at the time that you don't keep tasering somebody who is complian the only argument that is being made by defendant is an argument that it was not clearly established that he could turn around and leave the apartment and walk into the hall and i think that smith analogy show that it was but in any case this is a situation where of course there aren't a lot of cases there aren't a lot of instances where a police officer just loses it and and starts tasering somebody who isn't doing anything in a situation where there's nothing being investigated there was no crime there was no claim that he was that mr sanders was a danger no claim that anybody thought he was our and no claim that he was ever told he was under arrest until after at the very i officer ali we had been we have all in the record also all the radio cause officer ali called dispatch and asked for help when he was going down the hall with a t one hand and his pepper spray in the other hand and when you watch the film you will see that somebody is pointing there happens to be who are wells and saying pepper spray on the wall this before or after he attempted to use his television so what happens is when they're standing there waiting for a supervisor ollie gets angry he he pulls out his taser jeffrey turns around to open the door and walk out the door first taser shot jeffrey then is walking down the hall with lee behind him shooting pepper spray and tasers in the taser thing shows that about eight taser shops as they're going down the hall he walks in and hoover wilson is standing outside of his apartment door which is in a little alcove and jeffrey goes in there ali wants to come in hoover says let the boy wash his face mr sanders is standing at th thing in hoover wilson's apartment and he can see alley at the door because the kitchen is right after the door and then he sees two more officers come they come in he holds out his hands they handcuff him in front they pick him up pretty much carry him lay him in the alcove face down and that is  mr lee comes gets down in the i'm able to tell me something since you've tried these cases how this would work so both of you and judge oliver thought we really should segment th phases figure out clearly established in each phase theoretically let's say you lost on the first two stressed i'm just curious how this would work a trial so theoretically we say what officer all you did initially and in the hallway did not fairly clearly establish standards and the only triable issue of fact is whether what happened at the and violated them so of course at the trial evidence will be put on of the whole sequence the whole event right with the jury then be instructed hypothetically now this isn't what you want but hypothetically you know he didn't violate clearly established law with the first two segments and i getting right how this would work i think the way it would work is that if i were a the case if i were defendants i would ask for an exclusion i would say the courts ruled that these things were fine that he did i would either ask that it be excluded the evidence or that there be a jury instruction that the court found that those actions were just fine and i think it would be precedent we would then have law in the sixth circuit that you can be doing absolutely the right thing minding your own but i think the cases show that in each instance it was clearly established and i think that there are things that are so i have the asli obviously to a reasonable officer i think here are briefly i did what did have the option to look at the thomas case and that actually was a similar case in that it involved a call about a domestic disturbance and they came in that the the people were outside so there wasn't an inside the home situation and they officers believe that they had been fighting and then it was pretty perceptive to give them commands to get on the ground and then instead of basically nor the commands and turned and walked away in fact from a legal and it ran walked from a legal standpoint the court actually struggled because they said ok is it just walking away is that sufficient and the court said we really construe that to be in flight and we've never held at a circuit that it is unconstitutional to use a taser in response to a suspect to you know doesn't apply the command in turns and walks away that was decided in october two thousand and seventeen this use of force was in october two thousand and fourteen so i think i do believe charlie's entitled to qualify me on the first part now set focusing on the second part of this out in the hallway and i heard her describe the video to me her description of the video in two segments i thought there were three well i'm kind of merging the pepper spray with the because they're both involving flights so first and second kind of a similar legal analysis so i should go to the third part with effect to the hallway her description of the video i think even supports afs why after leave should be entitled she just start start off by saying that she overheard on the video somebody asking you got him cuffed in a question so it wasn't clear to it to the officer and i surely was not involved in doing the cuffing it would not have been clear to replaster that the suspect was c and even though the suspect so you got me coffee is still clearly not clear to an officer that he is not no longer resisting the officers are clearly struggling with him there are three of them involved he is being forced to yell in a loud voice hands down his head down which is just of that he is not complying that he is still continuing to struggle and that really gets to the heart of this because cheap ticket knowledge that there are not a lot of cases on this point and so where the you have a situation where it's not clear where it's ambiguous or in a gray area supreme court has said officers are entitled to qualified immunity even if they may be mistaken in retrospect about whether he or not he was resisting arrest it was not clear at that time that he was still that he was fully complying that he would no longer struggle he was still struggling they were still having to struggle with him they were still having to yell commands to him and the message to asian it would not be clearly established that an officer would