whenever you're ready counsel good morning court my name is tom hale i'm from birmingham and i have the proof is represented officer david moses in the little town of marco over now but this case presents a very unique circumstances far as i can see from case law pressed and from other jurisdictions that we looked at where on an initial twelve b six motion we have the opportunity to present the video of the very end that lay the basis of this suit this incident shows the exact kind of realities that police officers find themselves in every day and how many times it's unimaginable of a comment from judge edmondson from a case back in two thousand and eight that we cited the court buckley versus haddock where it says the circumstances that calm police to use some intermediate force no force and deadly force remain the cases where the law of excessive force is most and big it will probably always be considering the limitless that a potential different fact of the constant effort to prevent crime and apprehend prick criminals entails because these people are literally the foot soldiers of society's defense bordered liberty the state has a think the second three fourth pages are a little bit trickier if you could maybe help me out by directing your argument to why the second through fourth tazes were reasonable under the loan coming traffic in rush hour rush hour traffic and when officer moses gets that dough and he pulls it open he has both of his weapons drawn because he has absolutely no idea who he's encountered he has zero information about him even though he had finally gotten close enough to finally dial in the tide to give to dispatch they gave him no information and the only thing he sees is a white male who's still buckled he's got both his feet in the driving position over pedals he doesn't know his name he doesn't know where there is fleeing from an armed robbery he doesn't know whether he's and talks ikeda's he doesn't know any of these things about it so it does look like a car is of pair control of the car he says he puts the officer immediately back to the traffic that's whizzing by that you can see repeatedly and after the command to show me your hands get out the car  he doesn't do it now granted all this happens in fifty eight seconds and i agree the first taser the reason i don't have an issue with the first case is because his hand disappears in the video and the officer certainly could have been exposed to serious danger i'm not sure where i come down on two through four which is why i'm asking if you could focus a little bit on the well to throw work is in in not only has the threat not see according to the district court or at least  minish put to the court it is escalated because of the danger to the officer he doesn't know to the to the driver himself and obviously to potential passing motorists because until he gets sam out of the car custody there is that huge danger that this guy once he gets out he's going to russian he's already shown his aggression taken that seat belt off and thrown it behind him and you have to look at it through the eyes of this officer and as i say the threat escalates at that point well it may or glasgow contends that he was able to comply because of the p d tasing and that the motions of his hands and so forth were caused by the and i don't know that the video refutes that well they are i think that there is evidence that as an officer moses said in his criminal for our believe you got a copy of the transcript he was retrained omes on on may thirty first before this incident happened in july and they said what happens are these not the kind of reactions that you get when you're getting taste his answer was no the reaction you usually get is  and that didn't happen now what what is more important to unlight for it for a no oliver for a no and these the the way vs kubla case where you've got multiple applications where the suspect is obviously incapacitated he's obviously unable to control his body and exhibiting all these other factors that you would expect from tasing lying on a floor a lying on hot asphalt here that would have been constitutional and these are the seasons that they have to make he had both his deadly force and his taser and he elected for the last of the two and in order to get control and custody of this person and to move out of that zone of danger that affects all these other people coming that's the decision that officers make if they're mistaken they're mistaken but that's where the discretion has to come in for him to gang contro and and eliminate this threat and until he gets in back to the back of the car mr mr glass cox walks just fine he had fact walks backwards the able to submit his hands he needles he gets back up and he also answers the questions that mr officer moses asked him very clearly and very correctly now if if the if the concern for the officer was to get off the highway it seems to me the officer would have to give mr glascock time to comply and get out of the car and one of the tasing says like two seconds right after when he has showed his disgust and his agitation and then all bets are off and i say that's when that that's when it goes from just a compliance to a custody issue because anybody can interpret that as an act of certain agitation and probable gratian and that's what these officers are trained to observe as you note in his in his comment to in the court  that he didn't smell an odor around call about him and when he finally got him out looked at him his eyes weren't pinpoint but it is they very dangerous setting that they are in until he has custody of him and he has custody of him out of this is on that's what that's what these guys have to face and make those decisions every day and in looking in hindsight it's easy kind of to say well you know it was a little too too fast but in the realities of it in that pinpoint split second he has to make the decision with all these other things that are going on around him to eliminate the threat to himself to talk to mr glascock and certainly any potential you know innocent motorist that he would get tackled and pushed straight into traffic that's what these guys have to think about and they're not perfect they're not they're not  legally trained on every nuance of it and that's why looking at the and the as of someone who is in that spot what would you do you just have to you think that the statement about having to look through the eyes of an objective really reasonable blosser and not in the cool calm reflective hind side of the court chambers you really have to think about what you as a person would be doing if you're in that situation and that's what these officers are faced with every day now the point here too that since this is video officer moses was wearing his own personal video he didn't have to do that he was doing that protect himself in the event something just like this happened thank you count ok thank you and you percent or five minutes f district court cited when they denied summary judgment on qualified immunity because all of these raised jury questions and i think what we really have in this particular case is we really have a seen one and  scene one being the erratic driving by mr glass cox seen to being when the vehicle is stopped turned off and he first encounters officer moses and the time frame is crucial in this case as compared to the other eleventh circuit cases that have not qualified immunity it was three minutes and thirty three seconds from the time that officer moses activated his lights and sirens and mr glass cox was in custody it was two minutes  sixteen seconds from the time that officer moses activated his lights and sirens and mr glascock had pulled the vehicle over and stopped it and officer moses was running to the vehicle and it was exactly fifty eight seconds from the time frame that mr glascock had any interaction with officer moses in that fifty eight seconds twenty of them he spent being taste which is roughly thirty four percent and as the the eleventh circuit has recognized and even officer moses as recognize that you typically do not have control over your body during these tastings this is a sixty nine year old frail man who weighed about one hundred forty pounds where you've got a large officer who's trained in the martial arts who has both of his weapons pulled a firearm and a taser and granted we haven't been able to do any discovery in this case about what policies and you know when you start with that but you've got somebody with mr glascock raising his hands up saying i'm sorry i'm sorry that is the first interaction and you look at the time frames so within these fifty eight seconds from the time the door is open until the time mr glascock says tase the first time is sixteen seconds there are no warnings there or only and buckle your seatbelt which he did there are get out of the vehicle and he says i'm try and well on the first the first tase the officer did say don't you reach your client it looks like may have breached i'm sure he didn't mean to do it for that reason but when we look at it from the standpoint of a reasonable with all due respect judge rosenbaum i would disagree on this part if you actually freeze the video from the exact same where he's getting the getting taser right as you can see the taser wires you can see both of his hands and i think that's a factual dispute you can actually see both of his hands but as they did in oliver conceding that the first tase was justified which we would say it's not because we think it's a factual dispute we still have two three four right we've still got two through four and he's get taste in the chest officer moses acknowledged in his municipal court testimony i've been taste twice once in a controlled environment which is required to be certified and it's one five second when you know what's going to happen you know when it's going to happen and you know it's going to be over with and he said i lost some control of my body the second time days he was actually out in the field somewhere he said and somebody taste him and he lost complete control of his body by complete control you don't have the ability to resist arrest as one of the grand factors are you resisting arrest you don't have the physical capability to resist arrest even if you wanted to the video is clear he is simply trying to remove these taser wires from his chest that's not legally resisting arrest that's not resisting arrest in the graham well i couldn't the officer reasonable instructed to not do it to avoid it at all cost and not hit somebody right in the chest with the electrodes but he's pulling these wires off of his chest i mean right in front of him as his body is convulsing and his back is arching i think any objective objective officer would recognize having been through it let's us exactly what he's doing he's trying to stop the pain because then when you have that five seconds of robbing you have the ability to get out of the vehicle he couldn't he could have been one thousand year old college athlete and had wires in his chest and had the ability to get out of the vehicle immediately and that's why the time frame so i'm bored just prior because then the second is four seconds later you've been tasered once as a sixty nine year old frail man you have the ability to do anything as a factual dispute i think and that's part of the reason that the district court said there were so many unanswered questions well let's say we agree with you that there fact questions ok talk about clearly established law state that in the analysis they state since the fourth amendment contains a right to be free from excessive force the analysis in this case turns on whether or not officer moses is can conduct violated glass cox right to breathe free from excessive force it says nothing about a clearly established right and it goes on to do the analysis of the object to a reasonable standard and also the state law claims we file a first amended complaint which is the governing complaint here they file almost the exact same brief they when they go through the analysis they use the exact same quote since the fourth amendment contains a right to be free from excessive force the analysis in this case turns on whether or not officer moses is conduct violated glasscock right to be free from excessive force and then it goes on to do the analysis object of all reasonable standard in the case law that we're the graham in the oliver in those cases and it goes on to the state claim and that's it we follow response to it and in fact in the response we waive we raise the fact that they would waive the argument they haven't even mentioned this argument clearly established right they follow reply to that again no mention whatsoever about clearly establish right and in judge boundary the district court judge's order she even puts that in a footnote it says it they have waived the right but then she goes on to the analysis so we save the first argument is they absolutely waived it they've had this case since the beginning they've been through three or four pleadings and they've never raised it until we got here in the eleventh circuit the judge boundary did go through an analysis the second is you know the clearly established right she said that the oliver case put them on fair and adequate about that the repetition of the tasing is there you had a tasing in approximately two minutes you have here for tasing in fifty eight seconds and at first officer most actually thought he teased him five times but you have four tasers there and i it was in his brief and i sort of glanced at it and in fact it's sort of helps me out in this respects it's davis in versus city of opal like a where there was a radek driving and they said that counsels towards the grand is the two thousand seventeen case but it counsels tours that erratic driving alone is not some dangerous dangerous crime that would you know counsel towards it in the gram analysis but as far as the clearly established right in you know i think  different but oliver actually physically was on the street and he pulled away from the officer and that's why they said that the first days may have been justified that he actually had there was the ability for him to pull the weight it's also important understand the mr glass cox's in a confined space there's nowhere for him to go there's nowhere for him to pull away there's nowhere for him to flee so when you have the oliver analysis on clearly established right i think it it counsels towards putting them on fair and adequate notice with regard to the number of tazes you also have the weight case which is fittingly enough for barnes who was that the seat in that case was five foot eleven two hundred ninety pounds got a physical fight an actual fight with somebody with that officer before the second officer cooper arrives arrived in the court went through the analysis of the time frame that the tasing began and it looked to the number of repetitions of tasing they were having problems handcuffing this man barnes i mean they had they had bystanders trying to help him handcuff them and they look towards five tasing in two and a half minutes which they went through the time frame of them and the time frames of them were a lot different a lot more spaced out than what you have in this particular situation you had the taser nine seconds twenty eight seconds eighteen seconds and thirty second interval one of the than the i believe that i believe that's correct your honor but i'm not sure if there's been medical tear their testimony in the at the record again we haven't had a chance to develop the you know the record with yours with any but i believe that's correct that's the that's the design of it is th you know the electrodes the wires can shoot i think case law says twenty one feet and if the electrodes but the shot to put it on his leg would be more severe yes judge reply would have agree with that back the way case was decided conduct was so obvious that the reason the officer should have knowledge that this will be a federal violation we would also argue that again they still what we've talked about seen one in scene two in the repetition and the height and the weight  discrepancy the fact that after tase one you know that you can debate page one but the video you can see his hands the entire time and officer moses testified that he never lost sight of his hands after tay's one and so i think that from a clearly obvious standard that was cited in oliver that it was clearly obvious that you know you have some violation of a constitutional right if you continually take somebody when they're on armed you can see their hands and in this context they're confined in a place where they can't go anywhere the third argument i would make about clearly established other than the waiver and the precedent and the obvious i guess would be the fourth argument was it's designed to put an object you know an object officer on notice or to put the officer on notice that this might be a violation officer moses testified in this will try himself that he himself knew that that once a threat was over with that you had no longer the right to inflict tasing on somebody to try to  rest so in addition to the waiver and all over and it being obvious i think you know officer moses i understand is an objective officer standard but when you're talking about notice and putting somebody on notice he had actual notice that you could be argued that  notice that you cannot continue to taste somebody when the threat is over with sort of a housekeeping matter ok the city is also an appellant here the city but they didn't raise it they didn't raise any issues before the court i think their only issue was if there's qualified immunity for officer moses then the city can't be liable they have not raised anything on the eleventh circuit about money no or anything but that's not right i mean if there's a constitutional violation that can be allowable right right i agree but they have it right as far as the purposes of this argument from a housekeeping i think the only thing before the court is whether officer moses there was air in denying him qualified immunity ok so if we find there's a constitutional violation district court properly denied some regional city correct correct  you tell me the status of mr black's cox's appeal of the criminal code of the criminal cases appealed to novo and it is pending in jefferson county circuit court where the case is sort of just been languishing just i guess you know it has a parallel case here  d it's been you know they are and what i mean we're ready to try that we're prepared to try that case also you know which was interesting in this particular case that we talked about i know we're time honored objective reasonable standard you know but we have that the affidavit long time doctor doctor a volley of what actually happened here is you know there's no drugs no alcohol he received treatment in the you know i know they raised in the brief that the injuries that he had he actually had physical injuries and psychological injuries which is an unchallenged that it gives the officer and a window of opportunity to effectuate the arrest and if that's true it gives you a five second window to effectuate arrest all right there after how could mr glascock be asked to comply with orders when he only had two seconds or really only had four seconds to comply with any particular orders that's why the time frame in this is so important the only person that escalated the situation was officer moses he came up there you know get lift your f and hands up or get your half and hands out in the hands or up and the escalation occurred there from officer moses without giving him the chance to comply again some of these cases that were cited usually has a big crowd and there's chaos going on we've got one single person who's who says i'm sorry at some point he says i will i will at some point he says if you just give me the chance i will he even recognizes that i can't do this he says good taste over and over and over and i think it is a factual dispute for a jury to decide that it was objecting really only reasonable and the clearly established right i think they just waved it and even if they haven't there's enough evidence in the record at this point and based on the case court my name is richard would across the service counsel for the appellate officer david moses just a few quick points in rebuttal i first like to start with going back to some of the questions that the panel posed at the outse t expressing their concern less about tasing number one more about teasings two through four and the plaintiff i think is what goes hand in hand tried to separate the incident into two scenes or two accident scene one was the pursued scene two is the incident that occurred on the side of the road i think did that just ignores the reality a police officer cannot divorce certain  from others when they happen in the continuum you cannot divorce the pursuit from officer moses mind in go bew the traffic stop as if it were routine traffic stop is pulling somebody over you know for a bus to taillight or running a red light that forgotten the pursuit in the nature of it so many tasers the first time on the command of don't reach yes it is true that the second taser comes quite quickly but as he testified in a municipal court trial tasing number two is of what in his eyes and i think any reasonable police officers as is still a dangerous somewhat unknown situation does the second taser to prevent the removal of the taser probes and keep in place his ability to use the t affect custody income and control of mr glascock to now the third day as we can see that officer moses reaches in with the command again to get out of the car he attempts to pull mr glasscock out of the car using his hands we see clearly on the video the mr black talks pulls his hand that continues to use course words at officer moses at one point we see a swipe in a hand moving to lock or move the taser out of the way experience people usually comply with tasers that's a natural reaction is not to continue some level of resistance but rather to comply and we don't see officer i mean i'm just glasscock going to physically move out of the car until after the fourth ta it again i don't think there's much question these tell uses came in relatively quickly i think the video is clear about this but i think with the video is equally clear about is the situation itself unfortunately mr glascock didn't pull off the road into the parking lot of some store somewhere way out of the wet his car was pointed in all coming traffic and while the beginning to court brought this up perhaps his car was in park i don't think there's evidence before the court one way or the other we don't see the car rolled down just from looking at the video i mean it when then he gets out of the car and nobody's nobody goes back to the car to make sure it's turned off or anything of that nature there's no indication and it doesn't sound like it's not it may not have been i don't think that's that fact has been firmly established whether it was or wasn't it wasn't but as long as the main taint his position in that car even if it's in park even if it was turned off it doesn't take long to turn a car on slam it and drive and continue the pursuit because i don't think unlike what mr glasscock has said that he voluntarily stopped his car i think it was a loss of control and his cars boarding an oncoming lan following a multi mile pursuit reaching rather excessive in dangerous speed i mean he there's no question he attempted to get away from the police officer in the as a regional police officer i think that has a fair amount of cases about tasers and there are some general rules that we sort of see when looking at the gram factors if the threat is minor there's no resistance which could mean the crab is minor there is no threat and there's compliance generally this court has said that tasing after that point can be considered excessive but commercially where there is a threat where there is resistance where there is an attempt to evade then this court has generally found that the use of force is acceptable and i think it is important to note that the moment that officer glasscock said gets out of the car the moment he moves his legs and he steps out the use of force stops immediately thank you coun