time evenly i will reserve two and a half minutes of my seven five minute allotment for rebuttal so i will use five minutes now ok in a countdown and i'll try to help you keep track thank you  have led a reasonable deputy to conclude that a taser could not be used on a subject who refused to cooperate with that is after hearing profanity laced screaming coming from the residence that they had responded to after a neighbor placed eleven call but the report is that the real profanity was coming not from him but from the wife understood but the profanity in the screaming was coming from inside the house which suggests a domestic disturbance in progress rowing on but the reports suggest that if there's if the word is aggressor the aggressor is maybe uncharacteristically but the aggressors the wife they get there he's in the bedroom behind a locked door they get in there he's lying on his back i mean we've all of the video transpired the baton strike is not at issue on the quality and immunity qualified immunity claim just simply the taser which was the st use of force that was more than a minimal use of force and i and it was in dark  yes when it was even though if you're tasing someone and you have contact there's no need for dart in the dark is like a little harpoon and if you're trying to tase to get the shot and if you're right next to you you don't need to dart that is correct or you would have to lean in order to be able to use the dart in the alt or the taser in the alternative mode what we have here in this particular case is a question of whether or not there was clearly established law that the conduct of mr  thorne's taser included four efforts in which he resisted twisted and pulled away from deputy thorns use of minor force in order to gain compliance with his commands to mr delphi to get off the bed and then on the th effort to gain compliance mr delve a change the game considerably by reaching out grabbing deputy thorne's arm and pushing it away only after which and it's undisputed both from mr the plaintiff side as well as the video that the taser was only discharged at that point in time there was no way a reasonable deputy would have known as a september th of two thousand and sixteen that this type of twisting and pulling away this type of a grab hold and push that mr dunn engaged in in the split nd that he had a responsibility to make a decision about what was occurring and the close proximity that they were on a very volatile domestic violence call constituted passive vs i was as a volatile though he was lying in bed looking at a cell phone in a room that was locked so they weren't in the same place why is this such a dangerous situation it was dangerous at that point in time in which mr delphi is refusing to comply with the orders as the evidence shows the deputy was trying to i mean were they trying to arrest him or were they trying to do they were trying to contain the scene make sure that it was safe and interview the involved parties for the purposes of determining whether or not the domestic dispute had erupted into any form of violence there was prior to the entry the odd behavior of the nd delay the stopping of the screening the turning off of the lights up on the entry to the house there was also scenes of our signs of violence as the deputies entered the home where they could see the overturned couch in the disrupted room they had an individual who was yes locked behind the door who could either be a suspect of domestic violence or a victim that they needed to attend to and they were conducting their welfare checks so their st priority was to render down to when mr device chose to escalate his resistance from just simply non cooperation and verbal to twisting and pulling away to affirmatively grasping deputy thorns arm and pushing it away in that close proximity is that active resistance what transpired beforehand in terms of the tactics the procedures the assessments that were made one can draw inferences as your honor obviously has about what thorne thought at the time nonetheless at the moment that mr by a grab deputy thorne he committed a battery in close proximity in a dangerous environment where the evidence shows th deputies were trained the case last alliss that domestic dispute calls can erupt into violence unexpectedly and in addition we have a circumstance where the deputy was now having probable cause fairly generous understood you either side and i can certainly say that that is what the appearance was from the video and one can certainly draw a different inference from that but the goal at the time to was to render the scene safe as you saw from deputies astro's declaration which is in the record there was a concern that a bed is a common location for a weapon to be hidden and the reluctance of mr hands are visible i mean i just don't understand his arguments it doesn't seem when you look at the video like any of these things were happening i mean that he you see his hand so he's not reaching for a weapon he's looking at a cell phone he's visible he doesn't seem to be injured he's talking to them and he was in a locked rooms of the people who maybe were committing some sort of crime together or not together it's just the it seems like the officers of the ones who created the danger here are not the person in bed well the issue is not whether the officers created the danger from which this event then evolved the question is whether or not upon the grab by mr dunn via a intermediate force could be used because we no longer of course have that provocation rule under mendez we have to look at each of the elements of the event in sequence and with that in mind then we have a circumstance where the deputy is grabbed the deputy has very limited choices at that point in time in how to respond reserve thank you your honor and in a way it's off to one side and you may or may not know the answer what did the county know about officer thorne's history in los angeles and in richmond before they hired him that certainly is a question off to the side but the county did a background investigation of mr thorne prior to his hire and had examined the records from the city of richmond as well as the county of los angeles so the county  that he had twenty three excessive force incidents while working for richmond that's where they fired they only knew that i hired him anyway they county knew that he had events in his past background the precise nature of those events i would defer to mister bluestone who represented the county as to what they specifically did or did not know but the reason for his discharge from the county of sonoma was his release from probation after this event good morning my name is marshall blue so i'm representing deputies bo's astro and his appeal from the qualified immunity in this case deputies astro has been held liable not for his own unconstitutional acts but his under the court's analysis the district courts analysis whether deputy disastrous integral participation in this event ties into the claimed excessive force by deputy foreign so we have to examine what the court didn't do below is examine the boid st bend county elements which defines what's fundamental involvement in the in the actions that took place and the boys were spent county case came up with three elements to show whether or not the officer was fundamentally involved and they were that the officer knew in advance of an unconstitutional plan that they did not object to this unconstitutional plan and thereafter with that knowledge continue to participate it and in this way you can say even though they didn't commit the excessive force of the unlawful conduct that by knowing about it in advance not objecting that they then willingly participated in it that their own conduct is subject to  liability for their own cause not on the facts here i gather what's at issue is the action of your client or actions of your client basically in holding down the legs of a while after he is off the bed and after he's off the bed we're over by the door and we're getting he's on he's on the ground there's a brief period of a choke hold and then there are a couple of blows from a baton during which it looks as though your client is holding his legs down  well st of all there's a right on the facts i mean this mess i remember the video the video is that he was attempting to control him while mr dow they was resisting during the brief attempt for choke hold and when mr did  thorney and there's probable cause to arrest at that point he goes up to the bad puts his hands on him and the weapons drawn in a calm manner with the other deputy de mint tells me to take being taken into custody puts his hands legs and officer thorn is doing a choke hold if your client is holding the legs and sees the choke hold and is holding while the choke hold is happening isn't he helping with the action of the chokehold because he's keeping th guy from moving that's the rd element of the boyd the boy test the rd element is do you continue to participate when you have advance knowledge of a plan to use unconstitutional plan and fail to object to it there's no duty to intervene in this case that's not part of it part of this case it's not pled it's it doesn't seem like advance notice makes a lot of sense as an element if you can see the thing happening or helping do it then you're part of it right so why isn't holding the legs part of the cho and he's taking that person into ripped into custody another officer that they see assuming your fact pattern using an excessive force as well as on the video it's not well not assuming anything well you're  you're you're there was no anticipation from my client to know that when he's going to take in lawful arrest and take someone to custody and he's trying to hold the legs and he's not in control about plant and he's resisting at that point that he knows that in advance that he's going to use the time you're asking laisenia muses already well the guys on the bed he seem amused already when he is getting to the door and no surprise he did it again so under the scenario officers take officers to in making a lawful arrest put their hands to take someone to control for breaking and waffle rest and take into custody if that's a predicate for any spontaneous action that happens by another officer where's the line drawn how is my client going to know that if in this case that they're that if i go and put my hands on someone to make a lawful arrest that if any spontaneous hack actions happen by an officer after that point i'm personally liable i mean that sounds like an excellent closing which means that it it's a factual question about whether your client was an intricate part of the scrum well i don't think there's clearly stated case law that would meet that element if you look even at the case it is and thank you for it because help me out on that so does the status of the case law  whether he was an interim goal part is that what we look at or are we looking at the case law on the underlying act itself i think you have to look at the case law on integral participation because that's what he's being held on and at that point it's not clearly established but one case that you could look at is blankenhorn in blankenhorn there were a officer that came to the scene in the middle of the struggle and the other officers had tackled the individual they had punched the individual and in the middle of a struggle the officer keanu no came to the middle of it grab the person's arm is start to handcuff him and finally handcuff him the cool th circuit  blankenhorn found that that officer was not integral participant in the gang tackling or the punch even though he was involved with that loser spontaneous actions that happen in split nd decisions that are happening in chaotic situation but the dying circuit did find that after the plaintiff in that case was handcuffed prone on the ground in a static position and not resisting that they put horrible restraints on him and a mad point the officer did actually put the handcuffs was controlling him saying that is well he's on the he's on the ground on his knees trying to control in a struggling situation and deputy thorn is straddled across his back if you look this way there's deputy foreign there there's no way you can see in front of where the head is that he can't see that happening and when the spontaneous activity of when jeopardy of when of the plaintiff starts to rise up off the ground for deputy thorn hits him twice of the baton at that point in reaction to that he can't anticipate anything that that's happening and so in the in the blankenhorn case they found liability because in a static controlled environment where there's absolutely no resistance going on he had time to reflect on what the weather the hub and straight should be placed or not i'm ok now we've taken you over time i expected like a little time for a bottle and i'm going to ask you again this is on my time not yours what did the county know to the extent you can tell me about torrens record when they hired him and i was in on the counties not out of this i mean i get the i underside issue and let me tell you the investigation was about this this this pick and they sent individuals down to every single law enforcement agency to interview the actual people that were involved with him before he was hired before he was hired at the decision and they act x people they hunt people down to every employer that when law enforcement they had in actually interviewed the people looked at the actual complaints that were laid laid against him and it's it's it's very detailed in what they found out and it's very detail there were officers that were involved in in  places that was out before were interviewed and explained the circumstances what happened they went down to los angeles county where he was in corrections at the time and explain exactly what happened and they made a decision based upon not only did it happen twelve years or fifteen years twelve years or fifteen years earlier but that he had at during that period of time they felt that he had matured and grown he was going to hastings law school at the time and be a law student he  out some time at this sacramento district attorney's office and working at their office i mean it's a period of time that it happened and they did a thorough investigation was an angel of what about richmond richmond they sent people down there and that was  lawsuit for less than just they sent people down there to interview the supervisors that were that were still there and they talked to other officers that were there that transferred to other departments it was a thorough they went through a psychological background with a psychologist ok i get  actually made the decision and explain why the mail because if i get it ok thank you in the district court's order granting a part and denying a part summary judgment on these issues the st issue that i would like to take up is as the as judge white phrased as of september t and sixteen was a clearly established that would have been unusual excuse me unreasonable to use a taser and dark mode and to strike an individual with a baton when that individual may have been the victim of domestic violence was not otherwise suspected of a violent crime and who at least passively resisted the officer's commands judge white goes on to list several cases describing the nature of the force that was used in this circuit the use of a taser is considered a significant intermediate use of force as is the baton there are similarities there he analyzes these five cases and says that there are certainly factual distinctions between each of the cases that the court put in its order and the case at bar however he said the similarities are sufficient enough to have put a reasonable officer on notice that his actions were clearly unconstitutional  the hyper parsing out of the facts of this case does not help mr thorne's position the idea that mr multiple times poulder twisted or fully encircled his wrister his forearm with his hand in control of his arm and moved him away is kind of a frame by frame view of the video evidence in this case viewing every single frame in the light most favorable to the moving party to mr thorne here and that's not what the district court was supposed to do when they looked at this case nor is it what your honour's are supposed to do when analyzing the district court's decision specifically we're supposed to look at the facts in the light most favorable to the nonmoving party was the law clearly established and was there a constitutional violation the district court applying the graham factors found that there was a constitutional violation but of course under saucy that's not the end of the inquiry we have to determine if the law was clearly established so as to put the officers on notice that their actions were unconstitutional there's some argument as to whether the officers would know that mr dove i as actions rose to the level or excuse me or passive resistance as opposed to active resistance but that's really a factual determination and if this court is applying the law as it should then the factual determination must be resolved in light of the facts most favorable to my client and as the district court judge found this was in fact passive resistance now there's a paradigm he's at at least i believe runners correct and i believe that that comports with the language that was used in the thompson case where the where this court found that mr thompson's actions were mostly passive and certainly that's informative because resistance exists as us force on a paradigm where we have trivial and minor force or trivial and minor resistance and we have serious and even deadly force or resistance on the other end when the videos are viewed holistically what we see is a very violent event but it's not violent because of the actions of my client i am not here to say that he did everything right in the situation but the violence and the danger as this court noted appears to have been brought by the officers not by my client when the officers entered the home and unfortunately  specifically denied consent when mrs devices you can't come in they push their way into the home and almost immediately deputy foreign withdrew his firearm and it's a small note but it's important to note because this sets the stage for everything that's to come and he says who else is here and she says my husband fernando where is he in the bedroom and they head to the back bedroom deputy thorn with his firearm out a deputy who was removed from this case and given that summary judgment deputy diem stayed in the st portion of the home with mrs device while the other two officers went to the back and of course i don't need to rehash all the facts of the cases your honour's have seen the videos but what we have is officers entering the home absent a clear exit c or consent with no warrant and we have them operating on the information that the female is the primary aggressor in fact in the district courts recitation of the facts we can see things that they she seems to have been drinking that she's yelling and cursing and my client is accused of no wrongdoing there is nothing that comes through on dispatch that would alert the officers that my client had committed a crime or presented any threat whatsoever that the officers of the time have any knowledge of any prior  device record or there's a you know there's a little bit before they know there's of the time what they knew was the dispatch dispatch had communicated to them from the reporting party that the male half unquote had been taken into custody on a previous or had gone away with the officers on a previous occasion and they know that going in they did however they also knew because there was a but from the dispatch dispatch said but we have no record of that so the officers knew that the reporting party said the male half had previously been taken away dispatch said but we have no record of that and in fact there well it's not before the court the additional facts that would flesh that out  that is what they knew going in so as the district court correctly stated we have a potential victim of domestic violence if anything who has separated himself from an explosive situation and doesn't want to come out in his own home in the privacy of his bedroom in his bed in his pajamas and deputy thorne reacts his refusal to come out by kicking in the door to which mr dove a response i'm calling my lawyer now of all  the multitude of video footage that your owners must have seen over the years on the bench involving excessive force incidents there's always room for responsibility to be shared between the parties in a case and again i'm not stat dove i was out without any responsibility here but what we almost never see is someone who can legitimately be called calm and respectful he was not aggressive was not threatening and he said so to the officers and he called them sir sir i am not being aggressive sir i'm in my own house sir i've done nothing wrong i'm calling my lawyer now that very respectful behavior even if it's not perfect behavior disrespectful and certainly not aggressive or threatening is met with weapons drawn we have the baton which is released and it's stand up or i'm going to bust your f ing name and that's when mr device takes his phone and instead of trying to find his lawyers phone number goes to record the event  and thank goodness that he did but the fact that he pulls out his phone to do this is perceived by mr thorne as a threat and mr thrown form tries to take his phone away from him and we can see that when mr states go ahead tase me i've got you on video and that's when the taser is deployed this is not active resistance it is not perfectly passive resistance either it's on a sliding scale but it is sufficiently passive that the officer was on clear notice that the use of the taser in dark mode a significant intermediate use of force was not lawful under these circumstances and as such the dispute really does turn on facts was this active or passive resistance to the facts viewed in the light most favorable to the plaintiff seem to suggest that it was passive resistance and as such a qualified issue should be and was denied as it pertains to the claims of jastrow i believe that mr jastrow has confused some of the principles of interval participation doctrine here and is seeking among other things according to his moving papers qualified immunity because the doctrine of interval to participation may not have been clearly established i think that is what the argument is there it was not clear that his client  would have been deemed an enterable participant therefore he should be granted qualified immunity but as your honor your honest question did bring up that's not the question that we should be dealing with here the question is when viewing these circumstances in the light most favorable to plaintiff was he an interval participant or was he not not qualified immunity has nothing to do with that the qualified immunity to mister's astro would only attach if the primary tortfeasor was also given the benefit of qualified immunity in this case or do you think there is evidence that there is astro could see that show called i think that a reasonable jury would conclude that he knew that that was going on th how would what would be the basis for that the proximity of the people together your honor but so their argument is he couldn't have seen because there's a body in the way how what how would a jury find that argument to be debatable i don't believe that that is the case your honor i believe holding something slaves it is where one officer takes one leg and folds the ankle of that leg into the crook of the other leg and then folds that leg down on top to squeeze it in place thus forming almost a figure four with the legs given the proximity of one officer to the other and the fact that i do not believe that mr is astro was in a static position or he was just facing the other end of the room it's hard to imagine a situation where he did not know what was going on is there any of the videos that makes it seem like it's astro is in a position to see the show called unfortunately and i can't speak to that right now i can't give you a definitive yes and if he could not see that show called then is there a way that he would still be liable for the so called there was specific to the chokehold i'm i'm not prepared to make that argument your honor and what but so you think he would be liable for the baton strikes you can certainly hear them your honor even if you couldn't see them and you could hear my client screaming i believe as your honor correctly stated it might or might not have and if that is the case then this is an issue of fact to be resolved by the jury not one for this court is the court have any specific questions i have two some time you could two minutes and thirty seconds on the clock pl in counsel's argument he made a factual misstatement which i would like to correct here on rebuttal with regard to what the deputies knew when they approached the house they had been dispatched that there was information that the individual the male half had been taken away by deputies before it's not that the sheriff's department had no record as counsel stated it just simply stay indicated that they were showing nothing recent and you'll find that doors you can hear a female screaming you can hear her using loud provocative of vulgar terms the neighbors could hear at the deputies could hear it from the street what nobody could know because this was occurring behind closed doors inside a residence was what prompted that screaming and a deputy can't assume that just because it appears that someone is louder than another in a domestic dispute that person is not a victim of some kind of violence or is in the progress of a matter that could erupt into violence especially when a deputy enters a home for the purposes of conducting a welfare check on all the parties which is a legitimate exception to the warrant requirement the exemption see there and sees signs of violence in a side bedroom and then encounters an individual who is laying on a bed a place police officers are trained is a common hiding place for weapons and as explained it in the record at page thirty six by deputy sas dro the concern about weapons hidden in the bed in close proximity were an individual could reach them quickly is one that heightened the deputy's concerns we are now having the plaintiff's counsel argue in essence a provocation theory for the reason why delphi grabbed deputy of thorns arm and the grab was a game changer notwithstanding anything that had happened prior even if mr dove i was entirely passive at that point in time that grab that battery that probable cause for arrest in that close proximity stands in great distinction to each of the cases cited by the district court ok i thank you thank you very much we've all looked at the video and i don't know how many times you looked at it we look at it several times looked at it with three different body camera angles from three different deputies probably put it in slow motion to break it down at different parts and before even watched it you knew what the outcome was deputies astro didn't could rewind the tape didn't have three body camera angles didn't have the chance but other than to see it as it played out in front of him if you look at the camera and the t ime the the baton strike i mean the baton carotid it was six seconds of an entire chaotic situation when mr valli went off the bed and in the case law here there's not a case law on the th circuit which shows that these rapidly involving situations that an officer has this time to reflect upon whether another officer is using this constitutional unconstitutional claimed unconstitutional force and that's why the boid elements are so important because it's his own actions that are the ones that have to be tested to make him liable for someone else's constitutional violation the case and the way the spontaneous ac happen is the baton strikes happen from a different officer and not a planned event and in the california all the time it happens a lot of the rest is being made you put hands on someone to make a lawful arrest it's a common thing that happens the fact that some other officer spontaneously uses force at that point does that make that officer liable for everything that happened afterwards when that's not a static controlled environment like we have in blankenhorn or boyd or in this other series of cases that that involved here none of these cases are applicable on the spontaneous type lawford so the glob wasn't clearly established as to the facts in this case in the supreme court that you have to have said wearily facts squarely on point for them to apply and give an officer the understanding that if i go to make a lawful arrest and i put someone's hands on him and another officer starts to make claims excessive force i could be liable then i have a decision to make it that point but there's no case law that puts them on notice that way and i think if you went through the boyd elements you'll find there was no plan there was no intent or no prior knowledge