good morning and it please the court also my name is a bride price and i and the attorney for the appellant or iana mason in this case i would like to use twelve minutes threw her to the ground and then began to employ a procedure known as l v n are a lateral vascular neck restraint which is deemed to be deadly force under certain circumstances there are really three time periods that are going to be an issue for purposes of this appeal in this case in general the first time period is when the officer is of first makes contact until the time time period to begins which is where miss mason is standing calmly and is handcuffed then we have time period three where officer a man handles miss mason over to a glass table without explanation that he's wants to change the cuffs to either miss mason or to any of the security officers that are standing around in the vicinity and when he gets to the table officer is  stands in between her legs she's off balance as you can imagine being handcuffed being bent over a table her leg is a reaction of being out of balance  in high heels and a short dress her legs pop up officer is then instead of simply moving off to the side or employing some lesser type of force grabs her head and smashes her head twice into a glass topped table where miss mason suffers severe injuries to her face two and also t familiar with the excessive force analysis wondered objective reasonable test then telling me we have trouble from your complaint which inst event are you alleging it's the i claiming there's actually as i said there's three time periods i know there's a time periods a corner what you said which is your claim is what i was trying to get at it's an excessive force claim no no during a hyperlink in time period three both both both time period one began according to the video when your client was hitting somebody else and he pulls her off the exact you think is on reasonable force what he did i look just looking at the video you think that first incident is unreasonable force for the reason because i believe that the video demonstrates that miss mason is not hitting anyone but has the security officer by the  jacket and his pulling or she said he's attacking another law enforcement officer before the events that you began to recite she your client attacked according to what looks like us private security officer i don't know if that's my part it would be helpful to focus on the third focusing on time period three the at that particular point this circuit has recognized that when someone is in handcuffs that any safety threat is highly diminished by this particular and by an individual that's handcuffed prior the time period three just minutes before she was standing calmly had submitted to authority and allowed herself to be handcuff was in a confined area was surrounded by security officers and other police officers then the officer is the ability in this case takes without explanation miss mason confrontation or pushing or shoving absolutely ok so then we get to phase three and you've you described what happened in phase three your blue brief eight says that she's hit twice on the table was  twice or blooper he says he's pushed or is it is a disputed that she hit the table twice there may you can look from a different camera angle were he's now taking her down to the ground again and so  table top that he's hit her head on the table top price yes ma'am is that undisputed that's under spewed by the videotape evidence can we tell by the videotape so i looked at the videotape several times in any of it i'll just leave that then it's really tough on the videotape to see but is it a drinking glass it would appear to be some type of beverage less if there's any way we know whether she was injured on the first hit or the second hit but with the drinking glass to happen the first time a second time we do not that we know whether her teeth were broken the first time or the second time we do not know that either ok i think we have been in totality there at the table ok so for my part and then i'm going to get out of your way we certainly do have case all the talk specifically against which was a case involving the las vegas metropolitan police department where in that case an individual was cuffed and was slammed into a wall head first was and repeatedly  then he was slammed for a second time into a wall head first and then was it down on the ground and was punched and i think it's important that the the court analysis focus on what the conduct was it appears that some of the district courts despite the recent cases from the u s supreme court talking about beyond debates that the castle a case has been clearly established whether it's squarely governing whether it's similar circumstances which is the white case or well as be an obvious case under any of those standards we submit to you that any reasonable police officer should understand that slamming an individual's face into a tabletop after the individual is subdued and handcuffed is objective leean reasonable part of your claim for phase three that there was an intent to push your face into the drinking i cannot say into the drinking glass it was an intent to slam her face into the tabletop we submit based upon the fact of events that had previously occurred during the totality of this event ok if you look at the videotape the distance between where she was at what you call point two and the table was less than the distance between you and me probably half and distance and he moved her to the table and he bends or over the table and she pushes back at him and you say that her leg hit came as up as a reflex action he says that she kicked him in the shins and then he pushes her down hard and then it's when the encountering part so what he says is and what the videotape seems to show i think is that she was resisting him  again while he was trying to change the cards and that the eve the x the force that you say was excess force occurred when he put her head down on the table first as part as a reaction to her whipping her body back against him first i want to say about that that's what their their position is what i have to say about that is in we dispute that she was kicking back again  we state and we believe that she was off balance but assuming that she had was kicking all we had to do was stop to the side stepped to the side and he's safe and she's not injured i mean we can't forget that for purposes of the summary judgment he said that she was reaching for a handgun his handgun and that's part of the facts that the lower court took be judged from the perspective of a reasonable officer on the scene rather than a twenty twenty vision of a hand of hindsight so in those situations given that i have to judge this on the perspective of the reasonable officer whose facts do i believe as the judge you are unless there is some evidence that such is video which frequently is used that would totally discredit the facts being submitted by the nonmoving pardon but in effect what we are seeing it by read you write and looking at the video one can say it's just a reaction or one can say she was kicking him and frankly she was kicking him is the perspective of the officer and reviewed looking at the video i can't tell one could say she didn't do anything but one could say looking at the video that she rared her head back as if to but him and in that case and in that case one could say in the perspective of the reasonable officer that's what she did and one has a tough time in the video suggesting that he didn't she didn't go for his gun that that argument was totally abandoned before this clip i am just accepted and then i understand what you're going to say they're all i'm trying to say is what do i do in those instances because i can do it very easily when there's a motion for summary judgment i take the point of the other side and that's the that's absolute tru but in this case i can't take the point of the other side i've got to take the point of the other side but i've got to say judge from the perspective of a reasonable officer your point is not what the reasonable officer was perceiving the so there i am again and i also have right in that same granby connor case tackling or punching a suspect does not necessarily mean the officer used excessive force that's right in conner and so then i have to look at the factors in connor so why don't you just talk about the factors in connor i'm happy to talk about the factors but i e issue of material fact in the jury should decide that question so that's the answer that i don't know whether you can find a case and says that well i believe that it's i didn't you give me the case i couldn't find it that's why i ask you the question well if i found graham be connor which is the case on excessive force and it is the standard or a view and it says i look from a spread spectator of a reasonable officer and in this instance where we have a fight between the two and i've got it and i have a video of it and i have a fight between the two as to what they did or what they didn't do it seems to me that i have to give the officer the benefit of the doubt in that instance because i'm looking at the perspective of the officer and looking at the time let me quickly respond to the gram the gram factors the severity of the crime at the time of the incident at the most with when they begin with she was your argument is she was never charged with a crime if she had any crime at all it's a misdemeanor and immediately could quit when mason knew she was there when she knew he was a police officer his idea is she did tact a security guard and then she attacked him so as a cause i moved to phase three that may be what's causing the confusion in fairness but if you get to phase three because in phase two there's this period of calm t right he can be wrong in looking at the video one might well think that he was wrong well in the healing the waiter about by a hundred pounds and and there was a drinking glass on the table and she was injured and i really have a lot of questions about why it was necessary to hit her twice into the table to subdue her and after all she was handcuffed but but that's all twenty twenty hindsight so you are over your time but could you just tell me as a simply as possible why should we decide that orally multiple cases that say you don't have to but if it's possible that you should just like you should give a warning or you should give a command you could have simply stepped aside and said hey scan down stop all right thank you for your argument will think you can plan and we're going to put one minute on the clock for you when you come back here you're about two and a half minutes over now but we'll give you that thank you sure good morning your honor may it please the court craig anderson on behalf of officer sean is over at a las vegas metropolitan police department and when we go to time period three we also bring with us time periods one and two that's from she hand and that's from westby that you look at th totality of the circumstances so when they move to the table what officer is on knows is that he has a person that's willing to attack that has attempted to harm him that has calmed down at a couple of times in reinitiated the attack and so when he brings her there and re initiated the attack he doesn't know that he's well no plea perceiving that because well there were times like when he had her on the ground initially in phase one where she appeared calm so he allowed her to her feet where she immediately turned and attacked him so he's aware that i don't know if the correct were to be playing possum at times but she has had times in this interaction where she is call appeared to be calming down and then re initiated the aggravation so i don't want to belabor this point turning and you can see him she's racing him and at least he reasonable police officer would expect at least by then she knows that he's a police officer is the testimony that he did they exchanged words then of course the video doesn't have audio she says that he never said a word the entire time she says she was swearing and cursing at him and that she is unable to recognize that he is a police officer because she has self diagnosed herself with tunnel vision still even at that point says until she is that's confusion and maybe she doesn't understand that he's a police officer but he's in a uniform and a reasonable person in his shoes would think that she knows correct i'm giving you phase one i think that's week ok all right so then phase two is i think a period of calm correct ok and then can we go to face the three and all i was saying that about phase one as we take those facts with because if he obviously if he had just walked into a table and put her face into it that's excessive force but here he brings this history so when he gets her to the table she what her testimony is is that when he tries to bend or forward and i have two arguments on this is i think that because of the video in the case it blatantly contradicts her story so you can disregard her story under scott wait a minute also blatantly disregarded as far as i can see any attempt to reach for a gun ok or in any frame in that video where i should see that correct and so the it well to mean correct that i'm in the video hearing never reached for the gun i'm not agreeing she didn't i'm agreeing that you did when the facts have to be viewed in the light most favorable to the plaintiff that i have no evidence of that from the video the video does not show that and so for speech summary judgment purposes i would have to accepted that there are guns on the right side  side and doesn't show a view from the right side so there's an absence of evidence so yes that would be an issue of fact and he would be able to testify whether she touched his tool belt and i don't and i think that he just had the hand went back there but we're not arguing that today i am not ok but there are other discrepancies in the video that you think contradict her testimony but what her story is is that she lost her balance and what is what caused this movement but what her testimony is implausible is as i fell forward and then i fell backwards there's absolutely no way that when she's forward she could fall backwards we're not she's pushed into a table well she said she lost her balance and fell forward and fell back this is before the push ok so this when he's bending her over before the push because the injuries your honor and so she says that her coming back up is the video depicting her losing her balance but regardless even except he has spent more time on heels than you and i would hope so but i don't want to make any personal assumption but i certainly i didn't have any problem with that testimony ok ok well so let's accept is true then she lost her balance so then what we're looking at is what a reasonable officer would perceive in that situation and this officer has been attacked by her he's been punched by her he's been scratched by her so a reasonable officer in that split second moment could object to flee reasonably perceive the she was attempting to harm him again i think that's right can you focus on and that some some degree of force was necessary and that's always our problem in these cases exactly about how much is too much and we don't give you this from twenty twenty hindsight can you tell me why it was necessary to him push it down twice well the second time i believe is consistent with her losing her balance it shows her turning and him moving her to the ground and then she goes down again but you don't see injury your opponent the officer slammed her head into the table points and that that's undisputed you're saying that is dispute is the speed i think that is disputed by the video i think the first time in the table is intentional the second time through it's all part of putting her down he's guiding her to the floor and then you see her you know it looks like a loss of balance where her where she has the second photo is it and i'm not trying to be difficult but i this is important to me too did she she has the table twice she does that's undisputed yes is it's a ten second difference ok and so the first time clearly an intentional and the second time what you're saying is maybe that was the intent was to take her to the ground and she had to table on the way what the video shows is him turn her and then she wobbles and she goes her face goes back into the table hits a glance a straight on blow into the table first time correct and then there's a glancing blow as he's putting her on the ground yes to financing blow where she does have to take correct that you see it the same way i do and the second one of us like to me the loss of balance time there isn't one will claim here right and sometimes in these cases we see that there's been a follow up review those supervisor knows about it that there might have been additional training that there might have even been discipline  do we know anything about what happened as a result of this i'm troubled by the second here i'm not being trying to be subtle i'm really troubled by the second hit i'm troubled that he outweighed her by the pounds i'm just wondering is there anything in the record about even if you find this to be excessive force one incident is not enough i'm not talking about malcolm i'm talking about the other question i think you've answered it did you conduct an internal affairs investigation internal affairs in this is in her deposition went to the hospital and interviewed her and so she was interviewed there was more than just going supervisor i mean this was a report of serious injury so they they followed up on it i do not believe that she ever made an internal affairs complaint so they did that on their own accord because they were at the hospital when they interviewed her and so i think that when you look at the force that was used and understandably it caused the injury which is a factor  in addressing the force you also have to look there was whether that force is likely to cause injury and being pushed into being pushed forward is a routine police the action he did i don't think there's any evidence indicating that he intentionally pushed her face into the glass what he was doing this for attempting to get her body under the table to switch out the handcuffs and so you look at whether that type of force is unreasonable under the circumstances and based upon her prior activity and her actions that it's not and there's no clearly established case law that would have prevented him from putting on the table they cited to davis first the city of las vegas which is a case where the suspect never resisted he was a little bit verbal e uncooperative but he was not intending to flee and he was prone on the ground when he was punched on the face before that he was swung violently into a wall twice the end  suffering a broken neck i think if you look at the closer cases because this is a challenging environment it's a unique set of facts especially during the first phases that based upon that they don't have this scene controlled  leave i think i think davis is distinguishable because it's more extreme yes and there's always a continuum so you have the table hard hard enough to break teeth correct yeah and but that's i think where you get in the twenty twenty hindsight and he's basically making a self defense move which he is allowed to do he sees the body propel it back towards him you know he feels like he's being kicked which i believe is reasonable based upon the prior actions she has taken and he reacts instinctively and pushes her forward and it's a question of degree that's my only point it's a question of degree which is why i asked the question i think you have to concede she hit the table hard i do twenty twenty hindsight but neither do we you know at some point these claims are her taria completely i'm here a lot because i lose a lot and on these cases there are meritorious cases but this one when you take it in the in the milliseconds that he has to make his decisions based upon the totality of the circumstances up to that point and shoot for him to monitor the amount of force he's using in the push would be admirable but the officers are not required to use superhuman judgement they're just as expected to act in his zone of reasonableness and so when you get the saucier versus katz it says you may mistakenly use more force as i said they can be wrong because yes we are reasonable and that's why there is we have cases like davis and that's why we have i always take the poor plaques as alleged by the plaintiff when i'm trying to decide this particular case however in this kind of an action it seems to me that conner leads me to the idea that i'm have to judge these facts from the perspective of the reasonable officer so in that instance do i take the officers view of the facts in order to determine whether it was perspective  reasonable officer or do i take the plaintiff's view you take her facts apply them to his interpretation and determine whether that subjectively reasonable so where she says for example my hill struck his lower leg because i lost my balance you take that is true but then you view it through the perspective of the officer now if she had to then mean that he is free to perceive that she was kicking him i would say if he just walked to the table and we have we don't because he would have no reason to think that she would be violent towards him she would have no reason to think that he's attacking her but based upon the totality of her actions prior to getting her there in this specific case it is reasonable for him to perceive she is attacking him again the district court held that the plaintiff whipped her body backwards toward is to which he responded by slamming her upper body back on the table and they also found that her face didn't complaint says that she struck the cocktail glass that's what the complaint that's what the complaint says and that's what the court found correct and i don't believe there was ever a finding as to what caused the teeth you know there's no evidence in the record but not a dispute that the te i take what the plaintiff says but as to the perception i take the policeman's action again exactly and again the argument would be that based upon her prior actions when her body comes back towards him it would be reasonable for an officer in these specific circumstances to perceive that as another attack on him because of her prior actions looking at the totality as a whole like i say if he had just met her walked her to the table and christian point out lost her balance because of hills this would be an issue of fact as to whether it's excessive but because we have this three minute time period where we have observed her actions i mean officer is zero any objective a reasonable officer would have perceived that she was still attempting to harm him she had you know punched him three times she scratched him she was certainly prior to this attempting to cause him injury that's the problem i think that's right we look at the totality of the circumstances and this is unique because we have this three minute delay and it's less than a three minutes is the total anyway you know that's that's the problem i think is sort of cooled down and he's going to get up and say what about that and since you don't get another chance period in this case is not an effective argument because there were different periods not as long but there were different periods during this alter cation where she appeared to be kong where he had you know the first is when she's on the ground he thinks the situation is over so he stands her up to handcuff her and she turns in attacks him and then he gets her on the ground again and she fights her way back up so i think in these specific facts a reasonable officer would be justified in believing that she would  from the perspective of the officer book cause the the fact that the movement is not consistent i submit to you was someone at that point timetable three that is trying to commit any type of battery or aggressive act it and a more consistent in making that judgment can we rely on what we see in the videotape as to whether or not that is something he would reasonably have perceived as i have but you can rely on what she says can we rule out what we see that's left that gets me to my next point here so the answer is yes the the answer is yes but also in that answers your question judge if the wrecked evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party the judge must assume must assume the truth of the evidence as set forth by the nonmoving movement back toward him as if to but his head and nobody disagrees or she says that's what happened or i see that on the film then it seems to me that i have to take his interpretation of what that means not that i have to take i didn't i didn't try to head but him the action happened there's no question you don't pick you don't take issue with the action happened now at this point i have to say also look at the circumstantial evidence that have believed would discredit the police officers story and which might lead a rational fact finder to conclude that the officer acted in reasonably ok so you can  is there anything for the judge you know thank you so much for your argument i thank both of you but take that case under advisement well here the last case on the calendar for the day that's three five nine one three long versus bank of america