know or that my client the or the deceased a paranoid schizophrenia was having problems he was being followed thinking that he might be committing if you i was under the influence  he went on a very slow speed i don't want to chase because he wouldn't even going above the speed limit but eventually he made his way to his home and there he surrendered and then  thereafter is when sort of a difference of opinion a curse one of the things in and i've been before this court so many times arguing some real legal matters and we're arguing differences and what the law an interpretation but i think really today we're here for an interpretation of facts be in the underlying memorandum opinion judge lamberth when he  decided the decisions in this case i'm asserting that he went beyond his role as a judge and basically usurped the jury's abilities and responsibilities in regard in that his order was very heavy handed one sided and then i hear that you'll agree with us that if the video slash audio it's largely audio below bit of video  doesn't tell you what's going on the other video tell us the time it also says it contradicts your idea that he's going slow i mean throughout the chase there is is going to fifty sixty miles an hour i mean maybe that slow in your incorrect or maybe not slow but it was never above the posted speed limit one hundred miles an hour agree and i think one of the concerns is you know in regards to the graham package whenever you're to determining whether the use of force was necessary one of them is to determine that the need for it and one has to consider the severity of the crime you know in this case he was not being pursued for anything that was an aggressive assault her bra paree or anything else of the nature he was thought to have committed decision granting qualified immunity there the facts to me there are far more helpful to the plaintiff than the facts here so now that i have been overruled by my colleagues in my not bound by the facts of our case are are definitely different in regards to this particular case where you have is a plethora of not only officers weapons and a multitude of injuries associated with this looking at the you know this case you're talking about not only the officers will see six of the eight officers admitting to the conduct that they did two of the officers giving statements to say he was not resisting he was just standing there when he was suddenly tase and beaten you have a person who has him ridges when coma from being hit in the head from an ass at least twice and that's just it minutely by the officers taste from eight to ten times beaten kicked hit punch every part of the body and were point where  officers informed if an attack the person was of schizophrenia paranoid schizophrenia when he came in he called a stack at the beginning of the for a let's call it so they knew pretty early on and the judge pointed out in his or he said i think that plays for the officers and whether that's true or not i think it could play either way depending how you argued enough the important part of this case is that is there a genuine issue material fact regards to the excessiveness of the force the judge himself in the order said it's what is it it's arguably excessive arguably excessive that's exactly my point i'm not saying that isn't the standard is it i mean that qualified immunity is a high hurdle whether it should be or should be enough to me ok and the second prong which is that they needed to be on notice so that all but the plainly incompetent and you know knowingly wrongful people have to be on notice and what case can you analogize to that would show us that the conduct here given all the facts is now in this case we have not only the use of the taser almost a dozen times we have the use of ash's which is a long metal object upon his cranium and we have a variety of hitting and kicking during that time period the evidence in this case at most even by the officers ome reports and testimony shows that mr abernathy was at best moving and resisting of some kind he has never caused a threat to anybody he didn't have any weapons he never kicked anybody never hit anybody never tried to tackle anybody he never did anything and the plaintiff's witnesses most of them have stated that they never saw him doing anything if you are trying to get away in your excessive force argument a think there were some concerns initially but you know i'm not going to sit here and say that force wasn't necessary in some respects and wasn't justified i'm not asking that yeah i'm going to ask  because of the and because the way they continued to that effect excessive force yeah i mean i think one of the one of the factors you're always going to make a determination what efforts to temper the severity of the force were used at that time and there was not in fact it was just the opposite like you said they have people sort of tag teaming to come in and do things and people putting on their blackguards come in and get ready to do some damage so the whether it's two minutes or twenty minutes or fifteen minutes there was no there was no effort to try to temper the use of force it was used this case in fact all efforts were used just to increase it they  and killed him and he won doing anything he didn't have a d w i or any of these warning around kind of waving his arms acting weird and he ends up dead in our court said well that's qualified immunity you know in ma linux versus luna this guy's driving down the street and somebody gets up on to an expressway over the expressway in start shooting at him the officer does that and the spring court said that's qualified immunity and there's a long list of these kinds of cases i mean the fact is if we were sitting down to write on a fresh slate these facts would sound pretty bad but i'm struggling with the fact that we have a very long line of cases that frankly have worse facts and people end up dead and they're still qualified immunity and i took an oath to follow those cases whether i particularly personally would have ruled that way myself or not and in fact i'm proud i was in the dissent but that's ok the supreme court in odds are shari that's the law of our court and i'm bound by it so how can you i'm very sympathetic to the concerns you're expressing but i'm bound by the law and the law is pretty hard on this topic for your position i would agree with your concerns and i would agree that and with all due respect to this court and any other that i think sometimes we have lost sight of the fact that juries are to try these cases where the facts are so indifference i think and through us his right hand and had to get done that right away this might not have happened but he apparently is a very strong person who was intoxicated on cocaine maybe and  they every they would argue every act they did was simply to try to cause his other hand and subdue it and even with all the  force they used they were on they were not able to do it for five or ten minutes you know what would you have had them do other than what they did well first of all were were  assuming that he was resistant or in the entire time when there's evidence to the contrary is that he wasn't if anything was resisting a beating who actually could see his hands that testified he wasn't resisting there's a lot of people off on the fringes who admitted they couldn't see it's dark they couldn't see his hands and they're saying i don't think this was very good what was happening and i can respect their views but who was in a position to really see from the because you're having to look at it from the officers objective vantage point who could see that these witnesses you're talking about well unfortunately they can only see the swing of a hand and a hand going down to cause an impact the next see the impacts they could hear things they didn't actually see it you know in cases in which there's only two people who know and the other person's assist and you only have an officers version of events and you have to take that with a grain of salt so that's not our case although i mean on to varus we didn't take that with a grain of salt the two people one was the police officer one was dead shot i mean that's a problem we can't you're basically asking us to assume the officers are bad and we're doing something wrong if we don't have evidence to the contrary and that's really the to the the opposite of what the law actually is when i think the bizarre if it's a dog a county case or the fifth circuit states it was a shooting case the only persons that were there to testify what happened the shooting were either the deceased or the officers that shot him and because the officers were the only ones who were left you were not left with this idea that you had to accept what they say you can look at the other evidence recourses case and this evidence of in this case of any case should introduction of qualified immunity in regards to it and at least creating a general issue of material fact to go to the jury that's why we requested it and that's why we're asking let me just very quickly ask you about this issue of whether the force directly only indirectly caused the languages resulted directly and only from the use of force the medical examiner said that he died of the combined effects of intoxication with cocaine a prolonged struggle and enlarged heart cardio my they put it in the technical term for a large heart that sound like directly and only to you wood yes sure i mean for the purpose and i tell you three litigation whether you're talking about the death of two centuries you have to show an by the force i mean if somebody is running you know about to shoot me and i shoot them back i'm sure i've injured them but was that excessive force then if they're already on the ground unconscious and i start beating on them that's say i see them out of town but in regards to excitedly or otherwise then yeah you have this issue and it does rely upon whether the force was excessive or not if it was an excessive force that was unnecessary and they have some of the prior condition whether it be mental illness or drug enthused state anything of that nature then it is still going to be a constitutional violations directly related to it it doesn't it doesn't obviate the fact that just because there is some preexisting condition now the force was excess of them regardless of the condition and there would be a cost to tional violation so it is important to understand that concept but in regards to the one nine hundred three case which you have to show minimal injury but i think there's a direct correlation between his death and the use of force now whether it's directly related and he caused by it as a result of the human terms to his head when he was in a coma for several days and or whether it was because of some preexisting condition that otherwise exacerbated itself and caused his death the such as excited to leery him if by the way individual who actually died in this incident and i think judge haynes is correct that there is no evidence whatsoever that mr abernathy died of the injuries that he sustained and it minutely sustain were caused by if we if we assume argue and oh excessive force that caused injuries can his family not recover at least for that even if the death would have been inevitable from the non excessive force yes you're on i don't think so and i think that's the point i was trying to make although i'm not sure it made it quite that way if yes there's a survivorship cause of action that the estate would have an iffy suffered excessive if he suffered injuries as a result because for this if you're in that period for a long struggle was excess e that clearly was sufficient cause of death to allow recovery so that it gets really back to the core of this case i think is what weather office were were acted reasonably and continuing to try to do this man after he refused to let his left hand be handcuffed well your honor a couple of things there first as far as the prolonging struggle we have to keep in mind that this individual is six foot one two hundred fifty pounds all of the officers said he was incredibly strong the single eyewitness on the her male said that he was extremely appeared to him to be very strong and continued to resist the entire time the officers were trying to get him subdued in his left hand handcuffed and so the prolonging struggle was or was the result of mr abernathy's actions not the officer's actions or wouldn't they used as judge lamberth pointed out every single type of force short of lethal force that they could use to bring him under control but they finally were able to do that in front of mr is there any evidence that after he was handcuffed they continued to taser beat him the evidence situation said that as soon as he was handcuffed all the police officers actions stopped so there is no there is no evidence direct evidence any excessive force any he was the dog was released actually a little bit before i'm not sure exactly what the time was but before he comes into the interview on the video what happened was that operate plushest who was the officer who was the canine officer that had that dog released went to the truck and got the dog had a moan as a leash released him an officer stepped on the leash of the dog and stopped him the dog then got loose from that took off for mr abernathy and got his leash caught under the tire of the car got free from that and then you can see at about noon say maybe three twenty six or something into the maybe a little later three twenty seven into the video about maybe a minute or two after the actual struggle began the dog was released and after abernathy head had been handcuffed with one on his right hand and had a loose handcuff to use as a weapon after he had been taste after it thought all three officers at  least at the car site after he had crashed through his mother's door after he he had struggled with a couple of other officers at his mother's door only then really was was it clear to  officer plus shea that that the intermediate weapons and the use of open hand techniques was not going to be sufficient to bring mr abernathy under control at that point he released adult so  going on all right let me ask you this because the thing that bothers me the most about your side of the case in looking at the video the video doesn't show a lot of the actual action with mr abernathy but what it does show is a lot of officers kind of wandering around they're not running over there they're not helping as far as i can tell they're just kind of standing around and it seems a little bit weird to have this very intense effort to get this man under control and for and the dog the dog had actually did not write it in the video itself but actually caught up with mr burnett and so the officers the point of the dog is to to get the suspect under control and then the officers get there and finish the job and that's it no one is standing around there without even helping that's what i'm not understanding it see i appreciate that the officers try to remain calm i don't want hysterical police officers but i can imagine just kind of standing there while this very dramatic course of events that lead to some bodies there whether they caused it or not and where you think this very strong potentially psychotic psychologically impaired person is out of control and all of that you're just kind of standing there going what are we going to have for dinner tonight it seems very strange to me and very kind of inconsistent with the notion that they're trying to bring this guy down and this is a very intense and difficult situation i'm not sure of exactly what point of the video you're talking about but there's it's before he's even before the mother comes out and says he's schizophrenia that's where there's a lot of screaming and and there is a if in right in camera view like basically what you're seeing is you're not seeing what alphabet one of a better term and i don't mean to disrespect what you're not seeing the action you're just seeing this guy standing there kind of wandering around and i just that seems it seems odd to me it's almost like you have a split screen between like what's happening back home and what's happening over here in the field but they're all in the same area how can these officers be acting like that when there's this genuine situation going on i mean it seems inconsistent with saying that there is this kind of legal situation happening or potentially very dangerous situation happ well there are six officers that can be seen following mr abernathy and the dog through the screen through the shot and they go over and deal with mr abernathy or at least they're the ones that start dealing with him officer preston is one that tackles him to the ground and the other officers then join in and attempt to get him in and there are other officers that are basically there for crowd control and those officers would  think are probably the officers that you've seen and i think that that and one of them so there there's there to stand guard so to speak that's correct i mean that there is you know there's always a possibility that people are going to come out of their homes and want to get involved in that sort of situation and in fact that is in fact exactly what happened in this case with mr williams the gryphon the brother they wanted to go down to the scene and get involved and so there are officers that are stationed there for crowd control and that's what they were doing just says that there's officers who are actually supporting the plaintiff's version of events what do you say to  them i am unaware of which plaintiffs he's talking about exactly but no i don't think there are any officers that are supporting the plaintiff's version of events that they were still being in even of events in which officers are using excessive force would include beating someone who's not resisting would you please respond to that yes you're on there are there are essentially two witnesses really that are able to see mr i'm sorry neither of those individuals can see mr evan at these hands or what he's doing in terms of resisting the officers attempts to handcuff what they can what mr williams testified to in all of that your honor is completely consistent with what the officers testified to except they that was forced it was necessary to bring mr mr evern at the under control mr at that point other officers were hit giving him body strikes to tempt to get him to give up his hand so that he could be handcuffed are there any obvious words he said that they continued to beat him after he officers were struggling with the league grip and his brother could not see his ians when the officers were struggling with him there's no evidence as to that whatsoever what you know force was necessary or what force was unnecessary the mother testified to that probably the sister and all of the family members probably testified to the officers laughing but but it's unclear from the record whether they're talking about at what point they're talking about the officers laughing whether they're talking about the officers that were involved in subduing mr abernathy laughing or whether they were talking about the officers that were engaged in crowd control  tapes to the audio but listening to the audio you can hear how winded those officers or in there are a couple of officers officer dia's officer floor is that come in fresh and officer tom is one point was issues that may have been pulling the other officers out of the way so they could get in as opposed to them as opposed to the fatigue officers continuing to  this was six well there's one statement that says that he's five eleven the autopsy reports this six one to the rescue this i mean if this is not a case where qualified immunity doesn't apply then what is the at what point are we going to allow officers to be held accountable for this kind of conduct i think that's pretty easy answer gill seems to be arguing that there is that there is sort of degrees of force and that while while mr abernathy needs to be subdued during that to subdue him period that it's not proper if he's only you know put that  in this case the severity was and we didn't talk about the entire chase but mr abernathy was originally going the wrong way on one way street of core had to move over to avoid hitting being hit by him he took officers through a parking lot a couple of times he went through a shill station where there were other people that he in fact went through there and not only other people but other officers i think he finally when he finally got to his house he could the district court makes the point that it's conceivable he could get back in his car and driven again injured people one of the other graham factors is if he's invading a risk if he which he obviously was doing at this point all of it had to do really we wouldn't be here today if you were giving up his left hand but regardless he he did the officers attempts your question well i'm wanting to you to see do you agree with the notion that there is sort of great day sions depending on that type of crime because again i mean i don't need to keep dwelling on pressure but there wasn't much of a crime  just standing around waving your arms acting crazy i think so too and i think that mr abernathy's reaction is a lot more was a lot more serious and potentially dangerous stan originally although the officers did not know at that time that it was his mother's house and even if they had known it was his mother and her mother's house they didn't know what was inside once he got inside with their weapons  at the officers the closest that i could come to that would be when he came when he grabbed officer thomas's leg during the struggle in mr hogan and his front yard had he officer thomas was afraid that he was probably maybe trying to crawl up his leg to get to his weapon that would be the closest that he was resisting and then how was he resisted i mean i guess i'm having trouble understanding the answer he just gave is not punching but then how is he resisting he's resisting because he is keeping his left hand away from the officers and he's thrashing around keeping avoiding their attempts to handcuff his left hand so that's how he was also running in trying to break into houses right not only his mother's house but a neighbor's house miss let's take for a second an individual walks up to a police officer so some rather filthy curse words and the officer gets mad pulls out  starts beating the individual we could say that had he not said something to that individual he'd not said something to that officer the none of that would have happened but their training that they're specifically trained for teaches them that it is not necessarily the act that occurs that justifies and so you know i understand mr rolls position but just because somebody has committed a crime does not necessarily justify the use of force it is one of the factors to determine the severity of the crime the application of the force what type of force is used the need for that force the relationship between those two when we're looking for these factors in regard to this particular case you know the extent of the injuries suffered are just astronomical  and when we look at the threat by all accounts there was no threat to the officers you have people walking around milling around just kind of taking their time you know watching the scene and what you have by all accounts is even a question in regards to whether there was actually attempted handcuffing that they described there is evidence in the record that shows that they were really handcuffing they were less concerned with that and they were just concerned with everybody getting the take that you know mr abernathy that's what was going on and there is a you know sort of a continuum in regard to this case so what's your best case for prom two of coffee and the words that no reasonable officer could have thought what he was doing was ok it's every officer would have known that this was a rights what's your best case for us to look to because mala x is a is the last and maybe not the last a recent one in a long line of supreme court cases saying we need a case in these excessive force so point me to that case you know and i i wish i had an easy answer for i mean i think that on the facts of this case it's a very difficult to find something similar facts i mean whenever we're looking at the first prong of whether or not a constitutional violations o we're always looking to see whether it's clearly established and try to in this court is that you have to find a case specifically a point and i would be very hard pressed to find one if it were bound by the u s supreme court and they have kind of like once a year i think over the last few ok whether again it doesn't really matter what i think the law should be and matters what the law is and i took an oath to follow it so i'm asking you consistent with ten different u s supreme court cases point me to the case that put to look at and while there may be a plethora of cases that have been analysis in regards to either specifically tasers or specifically hand or specifically kicking in or anything of that nature hawkwind things the nature of this case pretty much has all of it i mean i did a little fall chart here just figuring out who did what i mean everybody admits to tasing just about you got one officer that admits to four strikes with an ass to fix three hits to the head you've got other people hitting to the head you got to the people be hitting to the body you've got kicks all over the place you've got i mean you've got the plot you've got to kind of run you're going to point us to a k and meet graham is a high degree of generality we've been told we can't use a high degree of generality so if there's so much here you should be able to point  a case and i'm just a man who genuinely asking so i can go read this case make sure i'm familiar with it and be sure i get this right because i understand the family is very upset about this understand the city has got their position i just want to make sure i'm following the law correctly in this case so i'm happy for you give me this case that you may look at and i apologize but i'm not able to give it to you right at this moment our apps are not able to do that but i've i really do believe that this is a case that was made for a jury it was one that you know even according to court was arguably excessive and it needs the ability to argue that now that doesn't mean we're going to try very well there's a trial on a jury will find that it applies but but