good morning your honor so i've reserved three minutes for rebuttal this is a civil rights case that alleging excessive force by deputy signs and a failure of duty to intervene failure to intervene to stop excessive force by trooper cook plaintiff mr kelly was intoxicated and even in question in a passenger in a vehicle being driven on interstate seventy one between columbus and cincinnati this is early in the morning about three am traffic was a light as would be expected trooper cook of the ohio highway patrol stopped the vehicle since it was weaving lane to lane and obviously there was a problem with the driver eventually he pulled the driver out of the car rest of the driver for driving under the influence this necessitated law enforcement contacting the plaintiff mr kelly because he was the passenger in the car and they couldn't just leave him there by the side of the road it's important to note that mr kelly was not committing any crime at this point in time it was being contacted for his own safety public intoxication at least in that circumstance being legal under ohio law trooper cook contacted mr kelly he attempted to wake him up and mr kelly didn't wake up immediately he was groggy and he began throwing his arms up in the air probably under the impression that his body was messing around with a trooper cook backed out of the vehicle and at that time deputy signes who had arrived the backup trooper cook these men were patrolling in a sort of a remote area of ohio so different agencies backed each other up deputy signs ran up to the side of the car the passenger side ripped open the door grabbed ahold of mr kelley and began yelling show me your hand show me your hands at that point one of the officers states we know you're asleep this is the police show us your hands or something to that effect in very quick succession deputy signs who has his taser already deployed taser is in one hand he's grabbing mr kelly with the other polls mr kelly from the vehicle or attempts to mr kelly is still seat belted in the car you know that point if you if you watch the video or the discussion by the district court he is flailing around a good bit is he not his arms are floating around yes sir and but we view that a little bit differently than the defense since he's flailing around he's stuck in his seat belt he's still stuck in the lap belt at the time and science is looking this is deputy signs directly at him as he runs up to the car obviously he's a police officer is going to contact this man his focus is on that man his eyes are on him that lap belt is visible the entire time and both hands are visible that science is approaching the car so you're saying are you are you emphasizing or arguing that that's a genuine issue of material fact as to whether he saw the seatbelt yes sir we believe a reasonable jury could conclude that science is not telling the truth when he says he didn't know this man was seat belted in the car and that is before the first taser incident now and you mean that that he is at least flailing around in his intentions or his motivations at that point or are not known what what was it that signs should have done just backed off and close the door on us or i mean obviously signs approached the car in the first place to back up trooper cook who had backed out of the car specifically because of that flailing of the arms obviously a police officer going to target this as assaultive behavior i know the police certainly do not have to back away at that point they're required in fact by law to get this citizen under control and protect him from his own drunkenness in this particular case but at the same time prior to using a the citizen even intoxicated has to have some opportunity to comply with an order and i guess the the classic case on that is is cockerel where the person saw a policeman and took off running and the court ultimately concluded that that there was no constitutional violation or at least it wasn't clearly established on the date in question because he was running he wasn't complying with the policeman who was chasing him even though the policeman hadn't said stop or you know any given him any warning at all i guess the running it self while a policeman is chasing you constitutes sufficient notice the policeman want you to stop and a lot of cases have been more explicit on that point although you're the giving giving you the benefit of the doubt here on the seat belt  he isn't really complying otherwise i mean giving him the show show me your hands and he isn't really doing that either as he was hands were visible as is clear from the video and i think it notes i don't think the defense ever really he was without much it you know attempt to get him to do anything this is the police show with your hands at the same time he's grabbing being pulled the man's just waking up he's incapable of complying with anything so be that as it may we're not complaining  or though that kelly is is grabbing the fellow and pulling him knowing that he's seat belted in that's a waste of effort isn't it is why would he why would he engaged in that well this this gets to you know you have to see the witnesses to know what what they're doing i've been at this for a few years now suing policeman is not right with the law school to do but that's how it goes and before that as a student working for lawyers in cleveland ohio i've never deposed a policeman before that scared me for the safety of my wife and children this is not a bright officer he would very happily waste time and be inefficient and he's not an officer anymore but to drive trucks now out of all the policemen i have to post whether he's being efficient and doing things that make sense he's the least likely wanted to have that be useful for nevertheless yes if he why is he grabbing the man pulling him out at the same time he's shouting into this effort against a seat belt at some point the lap belt comes off and he just wants to get the guy out of the car and it's all it's all bottled up in the same incident his arms are flailing signs that he grabs them in his arms and they're reacting to being pulled and science gives him a good way out of the car his feet are on the ground and even at one point speaking his hands are both on the ground science is still pulling him and you know if you look at the plaintiff and obviously he's not here to show the court he's not a large individual or as signs of a fully grown individual  weighs well in excess of two hundred pounds in the video he should have had no difficulty moving this young man one hand or not i don't think you know it's down on the ground and then then he does come all the way up i mean that's the pops up right signs lets him go at some point because he can't get him out of the car and part of our case is that a reasonable officer should know at that point and again they're not worried about being assaulted they're not worried about a weapon or any of the things the police officer have to deal with it is that arguable that they're worried about the traffic they did argue that but if you look at those officers and these are two veteran officers these are not rocky's they don't pay any attention to that traffic during this incident signs never looks or if he does it's just for a split second and cook looks later when he comes around he's got his back watching all this stuff and then eventually he looks over his shoulder to see if any cars are coming it's not in the record but that behavior is inexplicable if there is you know if there's some curve in the road or something where they can't see around it they probably could see a good long give you credit on that because when i watched it i was i was struck nonchalant right if they were now that's not to say there was no traffic it's an interstate and it's a legitimate already traffic go by but they seem to be they can't lead they say no they really believe that the people are going to get them of course people do get killed that way they didn't seem can say officers weren't worried that was about but when you know when you when you're hollering at a guy get on the ground you've actually got him on the ground pretty much on the ground he could have stayed there that his is popping up certainly is not very compliant not compliant but yet wholly the fault of the seat belt he was pulled back by that seat belt and was moving away from signs before the first taser strike and we think that's quite significant in the deputy's explanation of why he did this he claims that plaintiffs leapt out of the car and attacked him and we think nothing is further from the truth than that statement if you watch the video and give give the point of obviously we're sort of doing a lot of if not fact finding fact observing here and given that our standard of review here is are there some standard of law that could any reasonable officer have thought that what he did was constitutional well and if it's may it may have been bad judgment it probably was bad judgment but given that you're dealing with the person who split second all that sort of stuff he does come you know get him on the ground and he does come up however aggressively or run aggressively in contravention of what he's trying to do i mean isn't that really the issue that this is not bad judgment on this guy is that could any reasonable officer have thought that it was valid if he thought reasonably that he was being attacked then clearly he can deploy stays or obviously do they have to be attacked or do they have to fear that an attack is there's a potential for that i believe that if fear is sufficient honor or mere resistance even if he doesn't fear being attacked me or resistance to a lawful command even is arguably sufficient and i think is fairly well established at least in this circuit that's sufficient and i don't think as a practitioner that we could pick o credibly argue against that the police have a job to do they have to be allowed to do it we want them to do it and they have to not be in jeopardy well not only not everybody not to do that right disobeyed even even that even better right but it's what we're saying is that there was no reason for him to fear being assaulted here that it was on a reasonable and was on reasonable for him to think even that he was being disobeyed in his commands there was no real opportunity to comply until that snapped back at that point the taser gets him in the eye and he's blind now and that i he had no opportunity to comply and the only order being given show was your hands show with your hands and then trying to force him to the ground i mean this whole thing is very physical and what we're saying is that the officer was not justified in this action in this circumstance not as a blanket proposition that they can never lay their hands on a man in this circumstance but in the facts in this video there was no reason to be trying to throw into the ground and then proceed to the taser not just back up and say what is wrong with  you know he's not advancing on the police officer at the time the taser is actually deployed at the time you don't really are key your key observation or your key point you know you put it is it was unreasonable for the this officer or any officer in this search situation to think that he was being disobeyed or resisted is that really that is the rector yes and i don't think we had disobeyed so much in the brief as much as resisted but that's true yes i'm very short of time at this point your honour's we didn't talk about the trooper at all are as to the first hazing that heavily depends on his admission that he saw the red dot on the man's back and as to the second tasing really had very little time i mean it seems to me you're you're better argument is that right you'll have your time for good morning and please the court airing glasgow here on behalf of the a pelleas i would like ten minutes and the state would like five minutes all right because i guess i would go directly to one fact or factual issue that i think needs to be clarified i think a lot of what the appellant's case is based on is the idea that deputy symes immediately dragged mr kelly out of the car this really was an escalation  of a response when you approach the car i think the only thing you can see the only portion of this interaction you really can't tell what's going on is when deputy signs initially reaches into the car because his arms you know  is in the in the car and he answers don't his arms the only evidence we have about what he is doing is deputy signs testimony that he was actually trying to restrain mr kelly in the car he was pushing and he was trying to keep him in the truck that is entirely consistent with everything else that he has said about the stop which is that he was trying to keep mr kelly his intoxicated and flailing possibly of trying to assault a police officer trying to calm him down and keep him in the car away from traffic and away from himself at an arm's length away from himself and he said that the only reason that this alter cation spilled out is because the his hand slipped off because mr kelly was restrained was struggling against him and we never claimed that mr kelly ans slipped  what do you mean further and yeah he said bill mr deputy science testified to basically who was i think he said he had his fist on his shoulder that he was trying to dance well that's my point there is about a two or three second period if you watch the video where you just see deputy signed struggling his arms going up and down and what he's testified to which is not being contradicted at all is that he put his fist into mr science and shoulder servitor kelly shoulder to restrain him in and then when his because mr kelly was struggling that slipped off and he they both came out now we're not claiming that mr kelly left out mr kelley testified he didn't he had no recollection at all he was i'm sure he wasn't really trying to do anything he was drunk he was very drunk and he was high he didn't know what he was doing but physically what we the evidence is that there are men among men and pushed them out and then deputy signs took the opportunity to grab his big pussy that he has on and pull him down which would be the most efficient way to get him under control as judge cook as you said it would be very contradictory for him for deputy science to know that he's built in no it should be physically impossible to until they are they're out of the his first command to get on the ground is when they're out of the truck so the notion that this was either and they've argued this and i think i heard this here that this was somehow passive resistance i mean if you watch the video in real time you know it's good to watch it both ways in real time you can see how this is the classic immediate that you know us and the split second judgment that we're always talking about qualify the media analysis and this took about a minute twenty from i think the point that trooper cook was in the compartment until it was done and i mean there's not a lot of time for making distinctions that they're asking they're saying he should have made about you know his size his level of intoxication things like that what they know is they've got a very backs out you know something going on but cook cook is an agitated cook doesn't look like he's in for your and then signs comes charging up you know i don't know whether you want to be a hero or what but that's what that's what mean you know cook doesn't seem to be worried about the flailing other than that he doesn't want to interact with them at that right well you know i don't think i'd ever say why why he comes charging up on the on the traffic side there i'm i can't recall whether he was asked that question or not but if anything we're going to if we're going to kind of speculate about what they're thinking obviously you can say the trooper cook was nonchalant that's a really cold because he knew he had backup he knew he had somebody standing there that were going to address this situation  standing there he's somewhere off camera i mean right he comes charging out of the field of view from at least some distance behind the bumper is not well you know the testimony yeah the testimony sorry the testimony is that he was you can you can certainly make the inference that he should be concerned that mr mr kelly was going to exit the vehicle and his next step is in the fast lane of seventy one i mean directly you know where everybody's going on seventy one you know what that's like would daytime when the trucks come flying by and they shake your car certainly at night that's only heightened and i do agree to certain extent that they'd look like they're doing their job and they are not standing there looking over their shoulder to see what's coming and i don't think they'd be doing their job very well if they were had one i continually to see what traffic is that's a known risk to police officers when the go on the interstate but they have testified that that was one of their concerns and as a matter of fact once the scene is cleaned up i think in the conversation that true that trooper cook has with go with mr kelly says we don't get paid to get hit let's move off here we don't get paid to get hit that you can't discount that concern and that concern this court has expressed in the belief of the sandel case from the gentleman was naked running on seventy five g a thirty seven times and for the reason of keeping him away from the cars i mean i think that's a major component to this case had this happened had had mr cooke pulled off on the other side of the road where mr kelly would have spilled out into a cornfield it might have been a kind of a different situation but but that wasn't what happened and there was a real concern there for the for the traffic as to the other cases you know this court has as had an opportunity to look at taser cases quite a bit in the last five or six years we've listed those cases in the briefs and each one of them has a has a components cases we've cited i'm not going to list each one of them because you're well aware of them but each one of those cases has a a component that you have in this case hightower says you know this subjective intent is not really as important is not important if flailing around would give a real officer reasonable  feeling that you're resisting that's exactly what happened here whether it was because mr kelly was intoxicated or not certainly flailing around certainly i mean he struck mr kelly several times as he was trying to pull him down and that's one thing it's hard to see unless you slow it down intoxicated volatile behavior being a justification for tasering that certainly have that here and the case that was decided just last month in pennington versus terry said that you can tase it is justified to tase a person to to how to keep them from a greater harm in that case it was to stop a person from adjusting drugs i think there was also evidence of destruction issue there but one of the holdings was it look this guy's going to be we taste him so he wouldn't take the drugs and the dea same situation here it seems counter intuitive somewhat to tase somebody not to hurt that not so they don't harm themselves but that really is what is going going on here so obviously the state law claims go as well as the federal the federal claims  argued or briefed below so i don't believe that is a that is a argument that they can make here in the first time but even if they could that existing circumstances dr and that comes from a warrantless entry search case that i've never seen that applied in a in a in excessive force case like this one and even if it were i think from the video it's pretty clear that the person that escalated the situation that created this was mr kelly when you song at the trooper and then when he outside he was that mr kelly was wearing a hoodie that completely covered he's a thin individual it completely covered he admitted that it completely covered his belt he came completely out of the car most people that are building can't come completely out of the car and stand on their own the  did say that which would give you a second string that even if the reasonable officer would have seen the lap belt that wouldn't alter the analysis which may be a stronger argument because the first one does sound more like a factual issue even if the facts would lean in your direction right why didn't we of course there are we're going to time but we do agree with the with the trial court that that is the case that he was storing not a resistant person it was you know he didn't he was out of the car he was plaintiff must prove that the officer observed or had reason to know that excessive force was being used or would be used and the officer had both the opportunity and the means to bring the harmful current the district court did not find of course that deputy signes action constituted excessive force and whether fining started cooking i'd be found liable for something i didn't actually take place even assuming are you endo that you could find the deputy signs actions were excessive use of force vehicle to try to rouse mr kelly until the time that all conflicts ceased in the situation as well in hand now the actual tasing took place over the course of approximately between ten maybe fifteen seconds as it was re in the fact that every time he fired the taser it runs for five seconds and that's in the record by the player's account it took about seventeen seconds that was not the time this court has repeatedly held that in cases strictly when a taser is involved that is not time for the initial who could have intervened to perceive that something is going on as some sort of threat we spent the better part of the last twenty minutes arguing over whether or not there was an excessive use of force and cook only had a few seconds to even perceive that something was happening let alone that it would consider force it was excessive that just one off time for him to get there to see that it was even if it were now when it comes to the second point about opportunity intervene during the first tasing recording of the tape certain cook was on the driver's side of the vehicle making his way around and he certainly was not a position that time to intervene during the second time the tape was not entirely clear exactly when the tasing took place but at that time as we said repeatedly it was three in the morning it was dark it was also memorial day weekend and i sincerely doubt that mr kelly and his friend were the only ones who were on seventy one a little intoxicated by the time certain cook got that side of the vehicle he was trying to figure out was going on with kelly it was gone signs it was gone out of traffic and there wasn't enough time trying to see that anything bad was going on that it might have an excessive for the t time or certainly have time for him to intervene in any meaningful way throughout most of his brief in this argument plaintiff and class council have taken the tape apart several times they've run through it and it's easy and watching the tape repeatedly to second guess try to see what's going  on maybe should and that's measured on that sort of cooked and have the opportunity to watch the tape he didn't have the opportunity to know it was going to go on when he walked up to the truck he had to make split second decisions and try to perceive events as it took place in real time you thank you as to signs it it's manifestly and reasonable for this man to testify i was trying to push him into the car when that entire tape shows him pulling him out of the car into the traffic like that that's an important part of our case and we certainly hope w be allowed to present that to a jury because we think they'll burst out laughing at that a minimum he was pulling him out of the car the whole time he was in contact with them at the beginning and i think this is what the trial court is saying yeah obviously conceptually just because your seat belt in doesn't mean you can't attack a police says i'm trying to push him in and get everything he does is pulling him out that's a data point that a jury can consider and there was an explanation offered by counsel that when his hand slipped then they came spilling out so to could have filed against the person given qualified immunity if the issue was so clear that in summary judgment not summary judgment based on qualified immunity would have been the appropriate relief the the fact that another outcome might have been preferable is really underlying all qualified immunity cases and so that's really the problem i have and when you listen to this question that's gone on here and it's really kind of a jury argument that that you're making on the thing and it sort of the language that the admitting that if that officer reasonably believed that he was being assaulted or in danger of being assaulted or even being disobeyed in an reasonable fashion in the giving of a legal command by the citizens the taser use was reasonable constitutional and lawful