thank you and good morning before we begin judge person and i want to welcome to taking some from the th circuit and thank you so much for coming to visit and helping us with our busy docket and also just for planning purposes we will take a short recess after the st two arguments with that we begin with hunter or says the city federal w good morning thank you judge gruber may please the court our good friend representing the appellate officer darrelle and like to reserve five my fifteen minutes of climbing the jury considered only a single claim for excessive officer drill had probable cause to believe a trespass occurred because this partner officer schmidt stated that the convenience store clerk had not consented to mr hunter and his companion mr bosal eons remaining on the a property the claim for excessive force required the jury to determine under graham whether this neck restraint was objective lee reasonable in affecting the arrest under the to tally of the circumstances now without reinstating the claim for unlawful arrest and without modifying the pretrial order without instructing the jury on probable cause the district court allowed the jury to find liability and award punitive damages of six hundred thousand dollars which it reduced to three hundred and sixty thousand dollars post trial on the basis of plaintiff's contention that officer dura lacked probable decide it but she basically allowed them to presume that the arrest was in fact unlawful well and allow them to presume that it didn't matter whether it was lawful or unlawful which is accurate well it actually is a factor i problem where the court held that in erroneous lee dismissing on c r fifty an unlawful arrest claim and instructing the jury that the arrest was lawful the court thereby prejudiced the excessive force claim this is sort of the opposite situation where the trial courts effectively allowed the jury to presume the arrest was unlawful with no guidance and then allowed but you specifically didn't allow them to presume it was unlawful she said it wasn't up to them she said it wasn't up to them but she basically allowed  the plaintiff's expert to testify that manufacturing the trespass was the most startling aspect of the case what manufacturing it meant that they were as i understand it they manufacture in the sense that they went and and the side that they were going to get the person in the store and to ask the person can trespass and then come out and say that you can trespass and turned out that she didn't even say that but leaving that part aside they manufactured in the sense that nobody asked them to do this they went quiet well off schmidt went in and asked the clerk and he came out and said they don't have permission to be there and announce that they're going to be arrested for trespass the undisputed facts before judge laz nick in terms of why he held that the arrest was lawful and why he held that probable cause existed as a matter of law didn't change at trial i mean one hundred mr bossi on were close enough to the arrest of the driver that officer one hundred directed them to back up they were told three times he picked up officer mr hunter picked up the wallet and it was again told to step back because he was interfering with the crime scene officer drill did not talk to the clerk officer schmidt did and he emerged telling them to leave or they'd be arrested mr bow cillian at that point you know said are you serious laughed mr one hundred didn't leave told the officers he was going to leave after making a call did this u turn instead of directly leaving and but  guess i'm just what we know the facts what's the argument here th amendment issues are often revisited once trial facts elucidate the entire context is your argument that the trial judge was bound by her co equal colleague what's the legal argument and what so as a legal argument is that if you're going to allow the jury to make an independent assessment of probable cause or determine whether the arrest  unlawful or determine whether the force is excessive based upon the fact that the arrest was unlawful you should at least tell the jury what probable cause is you should at least was a request for a jury instruction in that regard no because she kept saying she was not reinstating the claim throughout trial but what we did to me she just allowed the full context of the whole encounter to develop without prejudice to either side but but i don't want to swell your time up that you have multiple evidentiary arguments the one that interested me most was the closing argument propensity evidence claim against your client did you object at that time did we object at the time of closing argument no but we have ject it continually throughout trial but throughout a trial it was used as impeachment evidence at least that's how i see it then then i your argument has persuaded me so far that it becomes agree just in closing argument but would that if that's an isolated  it be only subject to planar review well it's not an isolated error because it wasn't it wasn't admitted for impeachment purposes only it was relied on for one purpose and if you look in page one of the appeal he's brief you can see what it was admitted for as cross examination his statement that he does control his use of force and accordance with his training and and that is not you know nothing in that mobile communication this i follow my training always but then there's an earlier statement in prior inconsistent statement that well i get out of control pretty frequently too that sounds like just straight contradiction evidence well it wasn't used as contradiction evidence it was used to cross examine the officer drills expert to basically say that would your opinion about his use of force here change if you knew that you know he has been disciplined for not being able to control his use of force also not and not accurate really he was you know the district court believed he had been suspended from his position as a trainer because of that that was also  used by the plaintiff to wrongfully to indicate that he in fact had used force and does use force not just on one occasion but on many occasions and then he can't control it it was basically misused to prejudice the jury to show that he has a propensity for use of force it was improper character evidence it was improper evidence based upon an allegation of prior acts that really didn't exist it was a communication between officers and he was disciplined for the unprofessional use of the mobile digital computer not for the use of force or qualified immunity argument depend on on on the proposition that a choke of an airway is trivial force no it does not it depends upon the fact that it was  resolved on and inferences of disputed facts that we should have been allowed to inquire of the jury about a whether he was resisting was he pulling his arms away from officer darrelle was approaching other officers at the time was the opening his car door and did officer drill have a reasonable say you're seeing reversible error because that just court didn't let you explore those it didn't like that in the breeze it didn't well we did challenge the failure to give the found some of the facts one way and some another way and then you would have a qualified immunity argument and you should have been able to get that out from the from special entropic well i think there are there are two there are two arguments on qualified immunity one is the pla haven't and the district court failed to identify a case on point or even close to on point in which a brief neck hold against a suspect in affecting an arrest constitutes excessive force the nd argument is given the nature of this claim in which the probable cause issue was what turned the jury's verdict basically it was especially necessary to focus the jury's attention on the one claimant issue which was the excessive force claim with that i think i'll reserve the rest of you may thank you thank good morning your honor is may it please the court sidney tribe here on behalf of the at pelly josiah hunter first i'd like to address the issue of this matter of the probable cause determination if you don't mind i'm like to start with qualified immunity because i just speaking for myself that is a point where i have difficulty with your argument the supreme court has more and more required the spot of care how they they're requiring something that is extremely close to let every officer know that in this particular circumstance this particular force would be excessive and i was i'm able to find any case from the supreme court or of the might circuit that dealt at all with chokeholds brief or lengthy and am i missing something and  if not why not use something doesn't that require us to reverse i do think that the question of whether or not a chokehold is non trivial force is entirely about yes but this court mentioned that tasers were less than well this court as you mentioned a separate opinion that didn't garner even a plurality said it in passing so why is that district court has stated it if it's if it's so clear that something is non trivial that it hasn't even managed to make it up i mean chokeholds have been in use for however you know fifty years so you think this is one of those exceedingly rar cases where the supreme court would say that a nine or ten nd chokehold that end up resulting in requiring medical attention you think that's so obvious that the supreme court would say that every reasonable officer knew of floors without saying you need a case about that particular kind of form that's correct and this court has said that and in gravel it blonde in the discussion that was the quote supreme court have been debated even in the case law after they were established as non trivial force it was debated as to whether or not a momentary application versus a long application was was considered  permissible i thought that the th circuit had a substantial body of law where restricting the breathing of someone being arrested that's so barnard that i thought it's pretty settled without there's the gravel a hyphen name which i can't pronounce london yes i yes i why aren't you relying on those cases that seem directly on point i do lease officers put someone into anything that obstructs their airway that the or force that i agree with that your honor the only real was trying to address judge draper's question as to whether or not a chokehold the term chokehold has been addressed in supreme court case law or th circuit case law this is trivial or non trivial force or whether it's excessive force has to be put in the context of what the officer knew at the time and what the officer knew at the time was that the only resistance this person was offering was when he was grabbed from behind by the officer the officer felt his arm tense but that's not really right is it i mean i had much more difficulty with with the passive resistance concept generally because it was undisputed that your client told the police officer as soon as i make my call well one of when it when we if we assume the police officer has probable cause to arrest it surely can't be a citizens froggatt have to say well you can arrest me once i make my phone call however you you also have to look at  in the context and this is where the chef case that i cited from the th circuit is particularly helpful you have to look at it in the context of whether or not the officers decision to arrest was manufactured prete difficult area they're pointed out which is which which it at this point it did it appears we assume that i think that the or his client did think there was probable cause to arrest make effectuated trespasser us the question of i'm sorry whether whether my opponent thought that there was probable cause to arrest it was his client didn't walk in and speak to the clerk right but you have to back up from that to go from the beginning which is his client ordered my client to stand on  cause so the question is then was there resistance and i'm asking you isn't it just resistance i have real difficulty with the word passive when a citizen says after i make my call it is not resistance to an order to leave to say i i will leave i need to make a phone call and then to go to your car to leave you need to say i need to make a phone call he said as soon as i and very exact but that's telling the police officer you can you can do your duty with the accident scene and getting bystanders away and trespassers away but i need to make a call st there's no evidence that the officer told him or warned him no you cannot make a phone call and there was no resistance that's absolutely are at the point he was using the forest there was no resistance to the u s that's exactly right he said i want to make a phone call he walked to his car to leave and then was arrested and at that point offered no resistance other and again did he say officer i'm going to my car to leave how do we know that officer knew it could easily be interpreted the officer hears says i make my call and the guy walks off but doesn't leave the premises but wouldn't an officer then be able to use will to see someone forcibly is is should should a reasonable officer ask him is this your car you leaving as i instructed you well about is there actually established law that tells an officer they've got to clarify whose car these are bystanders they're not even the ones involved in the accident officers don't need to sort of accommodate their phone calls and clarify which is their call when interesting was the opening the door of the car yes he was so he was opening the door of the car the officer came from up from behind him shove the car door pushed the car door closed he was literally getting into his car to leave as he was ordered i don't know what else he could have possibly done to comply with his officers every request despite the fact that he was nothing but an innocent bystander in a good samaritan who had assisted in returning at the instructions of another bystander during the years of trial attorney below no i was not how can you possibly justify the closing argument use of the impeachment evidence and the critical question for you i'm asking here now is to acknowledge that was wrong and we should assess it for our listeners or are you somehow saying that that didn't view your directly into propensity evidence the evidence the evidence was st all the evidence was  how my question when it when it i've seen this often when lawyers get something admitted for a limited purpose here impeachment then they get to closing argument last word to the jury and suddenly they say well ladies and gentlemen we know what he did because he does this a lot it's his own words i'm quoting him he gets out of control that sounds like classic propensity evidence now you can i just want you to tell me no it's not why not or yes it is but it was harmless it is not propensity evidence it is not as  judge bears on was pointing out it is not for or for be evidence because it is not evidence for a prior crime wrong or act it does not fall under that rubric it is a statement by the defendant that he cannot control his use of force it was properly admitted to impeach his testimony that he always follows his training and it was properly used in closing argument and without objection the standard in this court is plain error whether or not it was plain error to then we have but that doesn't seem to be true because he said it and that would be ok right because that would be exactly repeating the context in which this came in so that the home is there a question is whether the difference between that and what was actually said was harmless again just to clarify it's a plain error standard as opposed to a harmless error standard but yes there is no harm that they can point to there's no prejudice in having repeated in closing argument this evidence that was properly admitted that was directly contradictory if there has to be a fight difference between what was said and what should happens i e what was said said what every set right but the but the that was entirely the point of the judge admitting the evidence at trial was to to contradict his statement the jury was allowed to consider his evidence his statement and it was stated in his argument that he uses force reasonably and properly according to his training the jury was also allowed to consider whether or not he had made a statement that suggested otherwise and to say to that into saying that this now becomes evidence that he failed to use his control in the past as an objectionable closing argument that is not the standard the court is going to essentially allow him not to allow him to to have the benefit of his statement his in court statement that is contradictory and not allow an argument to be based on his out of court statement that it was mooted but that contradicts that in court in court statement so the question of whether or not this is propensity evidence as described in four hundred and four b which relates to other prior crimes  you don't even get to the question of whether it's propensity evidence it's simply impeachment evidence now even assuming argue endo that in closing argument the statement should have been something otherwise the statement should have been well he said this but then he contradicted himself with this other evidence then the question becomes was their failure to object does is that evidence now that that argument play an error that up ends this entire six day trial and under the plane air or standard the question of whether or not this is a constitutional violation or whether or not this is something that is so egre say that that is a plain error there's all kinds of examples of incredibly agree just closing argument using this evidence in this way even if you assume that it was propensity evidence which is by no means clear it does not rise to the level of having been plainer unless the court has further questions i will relinquish the remainder of my time and we ask this court to affirm thank you thank you i want to dress three points in the brief time remaining to me in terms of qualified immunity it's apt abundantly clear that the supreme court's repeatedly directed this court and the other circuits to avoid a generalized notion particularly in excessive force cases but most of those i think all of the supreme court cases in which they've said  in which there is some danger to somebody and the police have to make a split nd or a quick decision about what to do and therefore the exact precise clarity of what they should have known about the law is incredibly important here i assume you agree that there was no danger to anybody this is just a question of how ever you look at the crime in question it was an extremely minor crime and the question was can you use force that is at least potentially deadly i mean there's no doubt denial that it is potentially deadly to effectuate that kind and the notion that it i gather this this tactic is banned in seattle for example in many other places so that but not in the jurisdiction where this officer was operating yes but that doesn't go to whether it's nontrivial force mean you think an officer went with any officer would know that this is at least potentially dangerous force and your honor not know that in terms in terms of the  circumstances at the time it was also that mr hunter was opening a car door in an area close proximity to another car officer darrelle doesn't know what's in the car he doesn't know what mr hunter is trying to do after he leave and then the fair there was a dispute there's a factual dispute about whether he said he was don't we have to interpret the lights but he did tell him to leave absolutely all right so say leave this minute no he said he said you have to leave right ok and he said and he left because if you know there are many tactics and you say the city seattle's bandit the city of federal way has not and if a th circuit case says it is whether it is known to you and whether it's approved for use in a situation in which not there is no danger to anybody and no resistance to the arrest is a different question perhaps but i think the point of the qualified immunity cases is that the officers are entitle to clear notice that a particular type of force in particular situation is all right but they had had you had to scramble a case which sent non trivial force so the only question is is there any chance that this was not non trivial force there's yes i mean there actually it is because there was you know that you talk about drumming where the suspect was hogtied and officers you know sat on his chest for for i mean it's a completely different situation force that is potentially dangerous and even potentially deadly is not non trivial force i mean is it is there any rational world in which that's the case well i would submit that non trivial force is simply not the proper standard under the soprano it is the standard in a th circuit under gravel a just that's the opinion it's a sentence from the opinion but it lacks the specificity that would give an officer clear notice any type of use of force could be nontrivial really it's well if you put somebody his hands behind their back and put handcuffs on which is what you need to do it all he needed to do to rest this guy it is presumably not deadly but putting one's hands around her neck and pushing on it i mean there was testimony in this case and there is  evidence i mean it's sort of common knowledge that is potentially deadly or potentially dangerous and isn't that sufficient i don't think it is and i think it is thank you count thank you the case just argued is submitted and we appreciate very helpful arguments from both counsel