case one five four one two five john harmon at all versus hamilton county ohio at all oral argument not to exceed fifteen minutes per side mark volman for the five deputy county sheriffs who are the defendants in this case who appeal to this court the decision of the trial court denying them qualified immunity in this particular matter as we know this well this is an excessive use of force case that involves an altercation that occurred on october twentieth two thousand and nine that occurred in the eastern area of hamilton county out on kluft pike it's a two lane road and happen at one o'clock in the morning and on that particular evening mr harmon suffered a diabetic  situation he was a life time diabetic and he had taken his his appropriate medication and he encounter a deputy sheriff and then alter cation of eventually took place five or ten minutes later after his vehicle was stopped it's interesting in this case that there's no dispute on the facts because mr harmon was impair and he has no recollection of the issue of this night this of five actions that night these deputies had no alternative but to stop his car he was in a life threatening situation he was driving in two thousand and six i believe not concede what the point of his players and nor do they concede what an independent witness officer sinar of the highway patrol saw  and testified to nor the investigation that occurred afterwards i don't know i don't have an trouble saying jurisdiction right because you do not concede the facts in the light most favorable t point of well it is for as the facts the facts judge they come from the deputies and the trial home have other present witnesses that tell a different story so why is that not just from a trooper saying or for instance he does not tell a different story he he is in lockstep with our fellows on the facts now there is one thing he disagrees with the in the in the record he disagrees that the deputy should have been tasing mr harmon when he was prone on the ground but other than deputies about what happened well it's a pin muddling with that if he states it is his opinion then it is an opinion of what the fact was that he visually saw with his eyes he and if your if your client's now that's not the way it was isn't that the classic dispute of material fact he doesn't dispute how it happened he disputes that they should have done  necessary or yes yes he doesn't dispute that that's how it happened was he disputes that there are efforts to remove harmon from book car and their claim that he was physically struggling with them he disputes that he disputes whether it was necessary to tensing he disputes whether he in fact could with fused to be handcuffed behind in value had him on it on the ground and because he did not remove his arm from under his body he disputes it so much that he says i went over there and helped them with his all arm because they were well it actually ended up dislocated but he disputed that he was resisting isn't that he had the essence of a dispute of material fact what he's disputing judge he's disputing the characterization that what they were that of my deputies that this fellow was struggling he's saying he wasn't struggling but they're not disputing that mr harmon was laying prone on the ground with his hands under his body it wasn't releasing his arms  to understand the propriety of the actions of the officers what is necessary is what occurred so you have both officer signers highway patrol officers testimony that's not the issue and again you have the internal investigation trying to determine what factually occurred and that reports it appears that the door was and the window was broken by the police officer unnecessarily that it challenges the use of the tell users it challenges the physical struggle to get him out of the car best saying in fact he couldn't get out because he was still in his seat belt and your officer had to cut the seatbelt off hell were all those things not material or not this racks there's the opinions of our internal investigative investigators in the opinions of the trooper that they didn't have to break the window well everybody agrees they broke the window the man's drive in an s u v raced to the light most favorable does it but that still it doesn't  the very issue absolutely and if you have a of how we patrol officer and an investigatory report say is this happened and your officer says oh no it didn't we saw something different stopped at one point they went up to the car with their weapons drawn he looked at them looked around he took off so then then he stops about two hundred yards down the road stops again ok so they approach the car they get their screamin with the motor running ok a three ton automobile and he's looking at him and they're screaming and i'm with their guns drawn get out of the car and he just looks at the split second decisions object was protect all but the plainly incompetent or those willing to violate the law all those had they admit they head to get him out of that car at that moment were they going to do write a letter or write of sign what can they do he's already on the twenty seconds we're still on the question of whether or not there's actually agreement sufficient to allow this court jurisdiction so in everything i'm saying is agreed upon by all the officers in the state trooper those are the only i wouldn't says at the scene the judge in her her ruling adopted the factual statements of these fellows for the purposes of were contained in the internal report for the purpose of the summary judgment and she says this case is ripe for summary judgment now that a couple things i agree i disagree with the court's opinion page fifteen is she says this man was not evading arrest or or a reasonable interpretation by the judge could be that this being was not a beating arrest evading arrest it's this this was a five minute car chase where he ran off the road into the grass he ran he committed ten traffic violations now granted he had been and was a diabetic situation something of his own doing i guess he didn't take his proper medicine you know enough of the insulin or whatever and that was the problem but it's one o'clock in the morning he's driving all over the road he abates a roadblock in the court says a reasonable jury could interpret the evidence to say that he wasn't trying to evade the police that's the  basis of her you know denying qualified immunity and i disagree with that interpretation the court secondly she says that when he sit in the s u v that's running in it and they break the window that should had been done they should have given someone else i had i had a case of a lawyer many years ago a very smart man in bankruptcy and that monday we showed up for the hearing and they said debt he was a diabetic and over the weekend he drove the wrong way on an interstate ramp and in you your honors please the court my name is mike a camera so it's my privilege to represent the applebee's in this case john and stephanie harmon i'm joined by my colleagues timothy burke the new mccarthy and darrell pain as well judge french i think the question that you asked about the genuine issue of material facts in this case is exactly where this analysis should be good and the reality i was i was floored to hear that trooper saying or agree with everything trooper senator said because that evening is mediately after the incident occurred trooper saying to reported to his immediate supervisor that the officers that were there behaved excessively and acted with excessive force so to say they all agree must mean that the county's position now is that they acted excessively because that's what trooper saying or an eyewitness to much of the encounter said while he was there there's no dispute in this we concede in the briefs that mr harman's vehicle should have been stopped we're all fortunate that he was able to stop the vehicle without any sort of issue without any harm to anyone the this dispute has to do with whether or not the officers behaved excessively after mr harmon stopped his vehicle and like to point out a couple of things it's referred to as a chase but i think it the last piece of most favorably to my client which is ignored in the brief of the county they they are now are doing it that way but you are saying we have jurisdiction so long as this panel that's current looks at it in the light most favorable we can still decide the qualified immunity issue that's correct your honor and it working at this again there's no dispute that the vehicle should have been stopped we're fortunate mr harmon was able to stop the vehicle but just about everything there when you are the facts most favorably to my client shows excessive force that the twenty second comment that was made problem with the jurisdictional issue because the key and in federal court jurisdiction you have to have a final order or you can't get to the next level the law that excludes has a limited narrow exception for war in iraq a tory appeals on qualified ety and in order to access that the plaintiff's facts must be conceded by the defendant and that's a practical thing that's because you have the trial court who's already heard insane and understands the evidence has made determinations about whether there's a dispute of material fact in not granting summary judgment and inciting this would proceed to trial so this court does not want to assume jurisdiction unnecessarily if it might be resolved by the trial itself hints the narrowness of that jurisdictional grant if in fact we don't have  case resides in the hands of the trial court i'm not saying that we have jurisdiction it seems to me that the go is to allow a complete resolution of the case so that it only comes up to us when there is true finality and in that situation don't you get what you want get it get a trial i agree with you you're on i guess the the issue i have a hard time trying to understand from the count brief is whether or not they have conceded the facts i don't believe that they have i think that they would need to in order for there to be jurisdiction is where there's there are slight variations but we have to go to the facts that matter and they claim they have i disagree with them and i think to ignore trooper saying there is an eyewitness and who immediately that evening reported that there was excessive force used to ignore that one of the old officers involved in the scene had to be removed makes the point that that isn't a fact that is an opinion his take on what he saw differs from but he doesn't dispute what took  place well there's lots of disputes about what did take place and when much of what the three officers there are there that evening said their own investigators this is of the hamilton county sheriff's office not our experts doubted the credibility of what they said that evening so i think  when you've got a situation where it's to be credibility that something to this is absolutely so so is help me understand it appears to me that you think that they have not conceded the facts in the light most page five of our brief is almost an entire page of all the places where we don't believe they conceded the facts most favorably to us but to address the merits of the court will allow i think the judge's decision was well supported by the facts well unpublished opinion but the good one case addresses this pretty thoroughly judge fringe and judge keith your decision and goodwin and i think it's important to look at the case discusses from two thousand and five it has been clearly established that if you're not actively resisting that you have a right to not be taste good one case also discusses being tasered gratuitously which i think is also a matter in this case when you've got a disputed fact though acknowledge some time but somewhere between six and eight of my client the whether or not it's clearly established activity when you're not actively resisting i think the good when decision definitively results very recently there's a case for the six circuit as well ken to be oakland county that also discusses that and says it's been clearly established you're right not to be tasered when you're actively resisting there are two cases to sort of show what the guideposts or of what's active resistance with an incapacitated driver in his car which is running on the side of the road there's the eldridge case and there is the case where and in those two cases in eldridge there's two minutes of commands there's noncompliance there is and was not active resistance was active resistance and much of the decision talked about how the officers were the aggressors not the individual so we have what is active resistance and what is not active resistance and somewhat similar situations to mr harmon two minutes five minutes violently shaking the car sitting there passively the fact favorably to my client mr horman was sitting there with his hands in his lap not making any noise the twenty seconds that was thrown out wasn't actually twenty seconds of commands and judge thoughts opinion it cites twenty seconds from the time his vehicle moved two miles an hour a couple hundred feet to the time the officers got out of the car may or may not have checked whether or not the vehicle was on a lot attempted to smash the window without success smash the window with success and applied the taser for the first time that it was twenty seconds it was not twenty seconds of just two minutes so when you look at this compared to think there's clear cases on what is and what is not active resistance and my client's behavior with the fact favorably to him was him sitting there with his hands in his lap not speaking until glass shattered all over his face  and so that really was what began every type of issue it was the officers aggression and excessive force there and there are other cases where reasonable officers behaved differently and in some instances achieved a different result so i think that's the most important issue to review in the excessive force case i think judge doj got it right that it's been clearly established when you're not actively resisting you have a right to not be tasered excessively you also have a right to not be clearly outlined in goodwin those have been clearly established the facts of eldridge occurred about four months before what happened to john harmon so if it was clearly established in eldridge it was clearly established when it occurred to her on harm and so that's generally what i'd like to say about the excessive force case such a force claim the other two the false arrest and malicious prosecution i think judge gotten the opinion did a very nice job of talking about how this is a question of probable cause and probable cause is typically to be decided by a jury unless it can only be construed one way and she says pretty simply and correctly that for all that mr harmon is a diabetic and was experiencing a hyperglycemic episode everything that occurred there after a jury could that there was not probable cause for those actions mr harmon continued to be held in handcuffs while he was getting medical care after they warned he was a diabetic experiencing hypoglycemic shock in fact he was denied the ability to use the restroom and urinated himself because and he wasn't allowed to use the restroom because he was being handcuffed still still under arrest he then had to go to the ship to the justice center and be processed became a bail defendant and then only after that with the charges dropped so i think judge thoughts exactly correct that a jury a reasonable jury could find that there was not probable cause for the arrest or the prosecution that took place with everything following learning that mr harmon was a diabetic who was experiencing hypoglycemic shock and i  think that's critically important to this matter as well as we've discussed this case is filled with genuine issues of material fact and i think the the briefing from the county tries to maybe overlook the fact that their own officers their own individual said that excessive force was used an eyewitness says excessive force was use but the facts in the law all support this continuing to trial so unless there are any further questions for me i'll take a seat thank you they did find was that he was tase too many times so he i think mr cameras wasn't exactly right he was taste seven times in the in the regulations say he should only be taste five times but a number of those tasing number one electronically they know they didn't work because he had a leather coat and the other thing is that it's a regulation that's not constitutional violation there's cases all over the six circuit where the someone's been taste twenty times it's not excessive when he's being tasered he's still not under control because a you know i don't understand this business at this hour of her five minutes is in a car chase innovates a roadblock and then he pulls over and the guns pointed at him and they think get out of the car takes off again and he gives two hundred yards down the road and stops again they all get out why do they have to wait twenty seconds why d have to say anything they know this me and they they can't the bind that he's having an epidural site affects everybody's you here yeah you know the gentleman was not a law breaker we now know that but intoxicated so why do they have to we have a jury of your peers to make those determinations and isn't that the issue before us judge jury and need to undertake or whether it needs to go back to a jury of his peers can determine whether there was improper conduct on the part of the officers all these facts are in the middle in there's no dispute because mr herman he ok troopers sangoma tells us the mechanic case tells us very clearly that the guy was having a seizure or didn't remember anything the court found disputes of material through trooper saying goes to the district and says i think he behaved excessively that's his opinion that's not like he takes them but i think a better point that you're seeking to make that there is an absolute reason why it matters that are the law is  we take it away from juries because we have right all the fight immunity so that people don't have to go through trial and cox the one of the one of the deputies the fellow who actually pulled his arm from under spotty around the back and dislocated  the only injury that he suffered the trial court found deputy cox not liable of excessive force and he's out of the case and that was an appeal that stole all the case the deputy that caused the injury is out of the case real quick i want to talk about this what is it this real quick because yes i know judge there's a active resistance versus the passive resistance eldridge goodwin this and that noncompliance what do you do do you do you wait to the feds asleep or what you know you don't have to do something and mr harmon is sitting behind his three ton car he says he's totally got you know under sponsor uncooperative driving  deadly car i'm compliant with many officers yes ma'am and it all eldridge real quick the average the average car was barricaded by the other cars not like disk situation why does he have the mansion on the  as you've heard will consider your case carefully you will receive an opinion thank you