good morning again i reserve three minutes or rebuttal so while we just heard that there are parts of the decision that i'm defending the district court did make some errors that we have appealed the first one is a very simple error of fact and that is we challenge whether there was probable cause to stop mr brown's vehicle and and here's what we got we got two people in a house on hundred thirteenth street and they see the red lights they come out they see mr brown's car with the lights on and they see the officers removing him from the car with the lights on and they see the tasing and we have that in affidavits they chose not to take the depositions now we have the officers testimony saying the lights were off and the lights were still off when i took them out of the car and then we have the judge saying well your affiance didn't see exactly when the car was stopped and i'm saying this is just classic circumstantial evidence i mean i do have a direct conflict between the officers and the witnesses about whether the lights were still on when they took them out of the car  about shots being fired but they didn't stop this car because shots had been fired they they stopped this car because the headlights went out and and that's why this is such a big deal because those  conflict with the officers about whether the lights were still on the instant after the stop occurred and that's good enough and i think that's circumstantial and you know it's a classic you do you do this in jury instructions you know the guy comes in with a rep raincoat you know i didn't see the rain coming on is his coat but you know i can infer that it's raining outside so this is good circumstantial evidence that is a contested issue of fact we want to get to a jury on the stop then we have the same problem when it comes to the tasing now we have the afghans they have the officers mr branstad so mr brown gets elbowed in the back and he goes flying into the trunk of the car and he sort of rolls off and goes across the street and faces the officers and even in the defense brief they admit that some sort of reaction if that use of force occurred is a reasonable is understandable and and they haven't appealed the i mean we're going to have a trial over whether there was excessive force at the back of the vehicle they have appealed that but now we have the question and the law is real established and this is an act of resistance or not if it's active resistance case law here is that you can use the taser now i've got a problem at another level about doing a chest shot on december thirty one two thousand and ten as whether that's an appropriate use of the taser but that's a harder row for me to hoe then just applying the law the way it is and there's no active resistance here we have a at least a contested issue a material fact an act of resistance why because just an affidavit says mr brown backed away so he was facing the officers in standing on the street then the black officer point it is tasered mr brown and tase him i did not hear the officer give any warning to mr brown before he was tase and the officer contradicts that the officer says not only did i give a warning but mr brown was coming at me he was no longer just standing there chap chapman yes so and i think his brother officer alleges same thing but i have to affiance they have to officers at any rate we have contested issue material fact on the issue of active resisting and we can't solve that without going to the jury that this is not something that is appropriate to grant immunity on it's something that we have to have a trial over and it's a really important issue because dr w renowned medical examiner says that that tasing to the chest significantly contributed to his death so this is an important issue to include in the trial and that's one of the reasons that we have appealed on that and then our other issue on our appeal is is the city responsible for on the one nine hundred eighty three claim for the excess force and in that regard we've got three arguments about the city number one it is their it's their custom it's their policy to permit ches shots and it was right there even though tasered warned a year earlier to move the preferred target zone down the city was still teaching shoot to center mass and we've got that in the record secondly their training is deliberately indifferent to citizens like mr brown because they're training in a way that puts these people at risk of impacting the heart when you do this type of tasing and then third ratification there is no they never found and didn't seek these affiance and didn't discover what really happened at the back of the car and that's the type of investigation that is not designed to find out what really happened the other point in our appeal is melendez there's one more officer that should be included on this issue of deliber indifference to mister to mr brown in the back of the vehicle and why do i say melendez because he's the one who first got noticed that mr brown was having trouble breathing he's the one who had mr brown in his arms when mr brown said i can't breathe he's the one who said who gives a fuck and that is some indication of an attitude that i think shows lack of respect lack  of caring for a citizen and i think it informs in part what happened afterwards because melendez says he's gone but he's not he's right there by the back of the vehicle res five seventy four to seventy five and melendez is that page number for seventy two then melendez is discussing the grunting noises that mr brown's making in the back of his own car and that's it his deposition of four seventy four and he's discussing that with rose nick so they're all part of this effort to do nothing while mr brown is deteriorating in the back of his own car and then we have merrit who is one of the defendants saying that melendez helped them remove mr brown from the zone car after he was unresponsive and help prop him up against one of the officers likes and that's merits garrity statement at page number ninety six so momentous is all over this from the very beginning to the end so you're the trying to get at is the district judge is granting qualified immunity to this series of other officers in this appeal right and i and some of these issues correct know it's she granted qualified immunity on the tasing she didn't great qualified immunity on the banking right so what i'm trying to get you to tell me is what did she do that was wrong is it that she didn't see that there were fact yes yeah there were a few issues she missed the fact that she's done one was to stop one was the tasing because he settler district judge make any errors of well to the extent that qualified immunity is a decision on the law she failed to recognize that there was a contested issue of fact  yes are you complaining about the tasing policy in general as opposed to focusing in on the chest i'm i'm i'm complaining about the policy and say you're right that there's that should go to the jury what's the consequence of them say he was illegally stopped everything all the consequences flow from them having some are i mean a lot of times they could be wrong full stop and there's no arm and you know well a citizen for five minutes and getting on their way right but here of course i mean we're in cleveland all right and we are in a city where there's a lot of nervousness between citizens and police and and if this man had never been stopped he's real close to home i mean he just gone home he'd still be alive so every one of these events is a big deal if he hadn't been stopped he'd be alive if he hadn't been tasered he'd be alive if he hadn't been if he had been properly if his condition had proper been properly addressed in the back  of the or if he hadn't struggled so much maybe he'd be alive and that's what ok but let's have a trial over that that's not that's not summary judgment material i mean that yes you're right i got to live with that but but i'll i'll take that goldstein says that because of these two people who state very clearly state that they only looked out the window after they saw police sirens that's what got them looking out the window and then they say the headlights r science says well there's disputed fact issue because the officer say the headlights were never turned on that's not material but why why material because the officers say the headlights were never turned on but we have people who say the headlights were so somebody turned them on because whether or not they were turned on after the stop is initiated is irrelevant to whether the initial stop was lawful if the lights were not on but the when the ever said that they turned the lights on but it doesn't matter all that matters is whether or not the lights are on when they want lights and sirens and initiated the stop if you look at the declarations they're very clear that what drew them to the window what made them look outside was the lights and sirens therefore the stop was already initiated and whether or not the lights were turned on after the stop was lawfully initiated is completely irrelevant to the question of whether or not the stop  been on no and the rain and now he doesn't work and i'll tell you why the rain analogy is so specific because you walk in with an umbrella in your soaking wet and the reason that that works that you can infer there must be raining outside is because no because nobody walks around with an umbrella on a sunny day and soaks themself just to walk into a room for people but when people are pulled over by police for various reasons your lights are on your seatbelt is not on your speeding what is often the initial reaction you try to correct you go oh you say expletive in your mind and you put the lights on your seatbelt on hit the brake you do something to correct it so it does not work that that the driver of the car will try to correct whatever here he thinks is the cause of the stop but it could be that the person is lights were in fact i don't think so you are not based on what we have here we're talking about a flick of a switch we're talking about something that takes less than an instant to do and the undisputed testimony is that at the time that the lights and sirens were not the time the stop was initiated the lights were the headlights i'd like to add that there is a law that any legitimate basis for a stop even if it's not the basis in the officer's mind at the time renders the stop legal so there is testimony that mr brown was coming from an area where gunshots were recently fired and if that alone is enough to justify the stop even if it were not the reason the officers gave include was in their instance even if this panel were to believe that there was a fact question as to the lights being on i obviously disagree with that but if you were to believe that you still need to look at the other circumstances and say whether in this circumstance given the shooting nearby and that the car was coming from where the shooting was knowing was a high crime in all those things you also would still have to look in the side is that enough to justify the stop and if it were you'd still have to find in favor of my clients and uphold the district court mr brown on the neck or the back of the head which because which is not part of this appeal and we didn't move for summary judgment because there is clearly a question of fact i mean that as opposed to the issue of the stop of these declarations it's clear that these declarations do get lead to at least a question of fact as to why there are not officer chapman unprovoked struck a single time struck mr brown while he was in the course and scope of being was handcuffed but the district court got this one right as well mr brown's reaction to break away and run whether it was two feet ten feet he took off you want to get away there's your line between not resisting and resisting that's flight ok and then he did turn around and then he was tasered and so we have to take these facts in the light most favorable to the now moving party so in this case we do have to look at the declaration of von and the declaration of else than both say he was taser without warning but there's nowhere in the law nothing that appellant's of point to saying that prior to tasering somebody you must w really doesn't matter that's one of those non material facts and also just standing there and not in fact approaching the officer he's already fled he's already resisted and there's a lot that went on at the car that  surrender circumstance that is that clear which let's be clear is not what we have here in that had pathetically that is so clear now absolutely if someone hypothetically surrenders to that extent that they have hands up in there and they are virtually communicating with the officer then i think that a taser would be an appropriate some level of force would still be appropriate because i have had cases and i'm currently litigating one where what happens is somebody flees and during the flight they fake surrender in order to try to get the officers off guard and they re attempt flight i actually have two different cases one that's currently before the circuit is going to be argued on january twenty seventh and the other which i'm filing summary judgment on on february eighteenth in front of  poster but my point is that's not something that's unusual for law enforcement for someone who is fleeing to then try to use that sort of tactic to then get a further advantage in their flight from police so there are certain circumstances where yeah an obvious surrender or something that appears to be one maybe got a lower level of force maybe now a taser like that isn't appropriate but probably a takedown is still appropriate were to make sure they're not faking i mean just standing there and assuming that they're going to comply with everything else and put their hands behind their back for handcuffing probably isn't fair once they've already shown that they will resist by flight and bear in mind it's not just the resistance by flight here it's like that's a look at  to all the facts as are known to the officer at the time given what a reasonable officer would understand and i believe reasonable officers understand that just because someone says i surrender just like they say just because someone says i didn't do it doesn't mean it's absolutely according to hoyle truth that we now have to assume is absolute that they could be tricking they could be faking they could be lying and the officers have to press don't think you can taser someone just because you think they might be lying you've got a container someone if they're in fact approaching you or trying to escape or trying to harm well you're gonna i agree with you and i think that we're getting a little farther away from what this case is about and the reality is the reason that the tasering is justified as the district court print correctly points out is that this court in hagen's noted that the line between not resisting and resisting is flight once there's flight you're resist too and it's because there's no way they could have been privy to it and it was that they that mr brown they believed him to be intoxicated these are experienced officers are believed to be intoxicated he was non cooperative and he was aggressive he was aggressive in the way he interact with them he was aggressive when he got out of the vehicle that's the drug issue it's our belief that mr brown was actually on bath salts but at the time while bats elsewhere in northeast ohio they were not illegal it was not until two thousand and eleven that they were made illegal this was in two thousand and ten they were not tested for but that's what we believe who's on the influence of were guarding us the officers had a good faith belief based on their experience that he was under the influence  and also as the district court notes great deference must be given to the on the spot judgment of officers and if you just look at that portion of judge wells decision she got it absolutely correct of the chest is in some different way or considered some different level of force than any other use of a taser the best they point to is taser international which is a private company and as an attorney what they put out there is materials to me looks like smart corporate counsel trying to head off any future products liability case it certainly does not rise to the level of a decision from a court such as this to the united states supreme court and there's no way that that is sufficient put anyone on notice moreover it isn't even sufficient today it's not law it's just what a company who again i think is just looking at products liability is putting out there in a cover your ass move it's very simple it does not do anything to impact on a legal standpoint what officer to you that there is no law and it is axiomatic that the statement of some private individual or corporation can not be the law the law is made by legislators the law is made by courts the law is not made by taser international just like it's not made by google just like it's not made by true value hardware or your local workers there are any cases pro or con your business have to do it struggle he says i can't read more on this as who gives a fuck now that's when he was a combat i mean they really were in a fight and mr garratt seen in the i believe it was in the last appeal did it make the distinction about when he's in the backseat now he's no longer a threat so they behave differently well when melinda says who gives a fuck that's when mr brown is still very much a threat he points out that melendez was there's evidence he was around even after that well that evidence i would go back to my last appeal and say it's not something that was even in the complaint we were not on notice that that would be an issue we were not on notice that that would be an issue in this case we're not on notice that melendez is standing near the zone car later on was going to be an issue for deliberate indifference and in fact the clerk didn't even consider that issue about melinda's being near the car and in terms of what was being near the car there were already two other officers and a third one showed up i mean at what point you know there are just too many cooks in the kitchen if there were three doctors standing there they could all give c p r i want you know the just is a point where even if you could do i think it super three doctors standing around and they see that somebody is not breathing each of them would have a duty arguably to give assistance but once one doctor give c p r the other two don't also give c there's only one mouth it's impossible to he can't just render superfluous assistance one on top of the other it has to be you have to look at it and say even if you want to look at one does at that point in time there were already two or three other officers who  complaint to be amended in certain ways in the future but that was as part of my understanding that's part of her opinion in this case so there was no time afterwards to actually amend the complaint if we were to send the case back would there not then be an opportunity for proper amendment of the complaint to raise the various matters and for you to respond to that and i just think that the whole unfair and we have already litigated this case for four years we've done a great expense there are individual officers who are you know sitting there knowing that they are being sued and their fates on the line and this would be something we're just going to say plaintiffs made a mistake and we're just going to say well the rules don't really matter we're going to say forget about it we're going to do a do over and just restart discovery all over again i just think that would be manifestly unfair to defendants and defense council and the city equivalents footing the bill for all this thank you thank you very ankit it's always a honor to be in front of this pa your honour's there is a case when an individual runs and then stops and faces the officers they can't raise that's baker versus union township just decided february of this year we also had goodwill versus city of painesville where that individual and these are both said in the brief ran from the officer at the doorway the officer followed him into the apartment teased him in the chest  and have that recognize and at least enter into a dialogue again as to whether you really need to use force and that's what the affianced saw they saw mr brown and by the way they could hear both the officers and brown according to their affidavits because they kept hearing mr brown saying what did i do wrong which i get i mean if his lights were on he's trying to figure out why they're messing with them and he asked it repeatedly and they're going to interpret that as recalcitrance and resistance and you know bad conduct by this citizen and he's going to say what are these guys messing with me for but he did what they wanted and they had met that he got out of his car he went to the back of his car he put his hands on the hood and then they hit him and then he rolls off and says again what did i do wrong but he's facing them and he's not advancing that's  active resistance at the point they're using force and they can't escalate by simply tasing him at that point now the other to go back to the probable cause to stop it is very relevant because the officers testified that they did not instruct mr brown to turn on the lights of the car that the lights were off while that he was removed from the that's why we insist that the stop it's clearly him play and with respect to melendez this isn't a situation like three doctors who are all trying to give care these are three doctors who nobody did anything and let the guy die so they're all on the hook melendez was was close enough and there are other officers you'll notice that once we started out we didn't pursue them because they weren't in the