say good morning joe flynn on behalf of officer gabriel stores the issue in this case is whether miss carroll had a constitutional right not to be taken down under these circumstances and whether that right was clearly established under the recent u s supreme court decision in white v pauli the issue is not to what degree carol's actually resisted arrest as a district court found but the legal analysis is properly focused on whether a reasonable officer or an officer stores position could have interpreted carol's action as resistance and this court has corrected similar mistakes by the district court in the case of ehlers vs rapid city the district court there like the court here relied on this behavior is non compliant uncork ehlers argument that the takedown was not appropriate because he was being arrested for nonviolent misdemeanor is in a political because he at least appeared to be resisting the court therefore the takedown did not violate a constitutional right in our case unlike small carol's was placed under arrest in order to put her hands behind her back were to stop resisting as she pulled away from officer stores plaintiff even admits that from store's perspective he could have definitely felt like she was pulling away at the very least like ehlers she appeared to be resisting arrest notably the district court here did not even mention the  decision the facts are disputed here that the thing is they might have felt that there was some kind of resistance but they are still questioning whether the force was excessive was in their well just because there might have been some kind of resistance doesn't mean that the constitution was violated well this case is similar to both ehlers and delays a can with regard to the dick degree of resistance in fact the degree of resistance here is greater than those cases and the courts have consistently held that were an individual is a is a appears to be non compliant in resisting physical arrest to the officer that it would that is reasonable for the officer to execute to take down under those circumstances or sports or question is you know there's the serious of the injury is she over this as of the injuries and as i think relevant in this case and i'm i just don't know i mean we have  diction over questions of law and so the difficulty in these kinds of cases for me is that the qualified immunity standard is as a corporation a certain amount of attention to the situation the actual facts of the case and the lowers are not allowed to cast the legal principle so broadly as we might be inclined to know the words it's not a question of not whether it's clearly established in the constitution that excessive force there's a prostitution were over there question is whether it's clearly established in this the others case which is precedent here the the circumstances under which the individual was taken down were similar the claim there was that the takedown was was t fast or too aggressive but in both of those cases the courts held that the whether qualified immunity applies does not turn ons the extent of the injury in fact quoting chambers and bla is not whether takedown is reasonable does not turn on the unpredictable consequences of the use of force but there the key may be the word unpredictable well right but every have have stated in both of those cases as well that that because the use of force and take downs are so dynamic injuries are by nature unpredictable so that the court has already considered the court this court has already no evidence of that i think i think the court has to take a look at it just like in ours and blas what was the whether the individual appeared to the officer to a reasonably competent officer to be handcuffs who was jerked from his knees no no blasi is the case where there is a roommate when they when the search is being conducted who refused to sit down in response to the officer's conduct and then in that case he a really help you as much as you say it does and here's why i said that place x pretty careful not to say that the constitutional rights were not violated in that particular case the person who is being a russet does say that the right was not clearly  cause significant injury in like blasi curios was belligerent non cooperative not following directions legibly her arm twisted behind her back she was taken to the grown according to her and sustained significant injury so you argued your argument be than officer looking at the place that case would not say that it's clearly established as the place that court decided that you know that this type of move doesn't clearly constitute excessive force would would not be the law would not be c the officer here would not have noticed that his conduct was prohibited what about what about just to press you a little more so that takes care of that if she was resisting arrest side of the ledger but there's another side of the ledger here which is that she argues she wasn't resisting at all that there's at least evidence in there suggesting that there was no resistance now i know that officer stores would take issue with that but we're not allowed to took a look at the the determination by judge doty that there is a genuine issue of material fact on the resistance versus no resistance point so what do we do with that well i can tell you i just quoted from the court where the court said that that she was resisting at and when she was pulling away from officer stores and plaintiff by her own admission states that that that she it was certainly reasonable for officer stores to believe under the circumstance that she was pulling away from him and so she admits that it's undisputed that she was pulling away from him the record shows that and she admits that officer stores could perceive that just that he was that she was point way from the court also acknowledge the same so there are significant undisputed facts that support her resistance and in addition we have the quote from her on page two hundred of her deposition where she talks about with regard to where right arm she admitted leave her right arm away from officer norling and you know i would with i would submit that that's not necessary to even get to that because officer stores witness  experience his own resistance but with regard to officer norland the there is no fact dispute there either because u the standard is whether it's completely caught the court's ruling is plainly contradicted by the record and it is so in addition to this resistance by the stores experience she was also resistance resistant to tertian of our case law that any resistance however slight gives watch of the officers to take whatever action the officer thinks is necessary in the circumstances absolutely not you know the fact that you're resistant doesn't open the door courts the courts say that when that when the suspect is non compliant and resistant that that the offer there's no qualified immunity would apply because there's no notice to the officer that his conduct is prohibited  reasonable most of the officers perception yeah i believe the ice page one ninety two of her deposition transcript where she indicates that the officer would reasonably perceive that that she uses that language where she said that the language that she uses is that does it matter in response to judge wall man's question that this is a there's evidence in the record i know officer stores may disagree with that this is a non typical nonstandard unusual takedown this is not something that sanctioned by any law enforcement agency and so maybe it kind of gets back to judge predictable unpredictable point but this is not ordinarily how officers do things well i mean this is different than other cases where i think  there simply is not so so that gets to the point that you could do any kind of takedown you want and it's fine i mean it kind of gets that back to the earlier point it doesn't have to be sanctioned it doesn't have to be a standard it can be anything you want to do well you know officers are it depends on the the courts have recognized that every situation is dynamic you're the plaintiff is claiming that her arm was lifted up high up towards her shoulder and she was in taken down to the ground in that under that technique that would be similar to blazing the court specifically talked about the arm being brought up high to the shoulder and the takedown then occurring so they're not it's not that there's anything unusual about the take the nature of that to that to the analysis that does the nature of the entry just not matter in your view or is it just not controlling those are two different things i would submit it's not it's not controlling and the court don't if you follow blasi you follow chambers and you follow ehlers and others that cases that we've cited the extent of the injury is is is not determinative thank you abstract issues of the law and not to determination that the evidence is sufficient to permit a particular finding of fact now that's important because judge doty reviewed the record and made the finding that or made the determination that the evidence was sufficient upon which a reasonable jury could find every single one of the graham factors in favor of ms karl's she was a nonviolent misdemeanor that's a given she wasn't threatening to the officers officer norland testified to exactly that she wasn't threatening to others the only other people there were the only ones is and the own stated that to the officers that very day she wasn't trying to flee in fact she was at home or kid was sleeping in the basement she's on the phone trying to get yet even more police to the scene and she wasn't actively resisting and even if she was there resistance would be a minimal amount the m inconsequential now those are fact issues they're trying to get around that determination by saying because they only contest that last one and only part of the last one being can you really further into and trying to say that she made the emission is counsel asked during the deposition while is it possible that officer stores thought you were felt that you were pulling away and her response was it was p e and i don't know i don't cry out of line which i was working for and what's important here and which is why i believe judge dodi's finding that a reasonable jury could find that there was no active resistance is that it's not what thought that matters it's what a reasonable officer in his position would have thought that matters and under her testimony she's in the garage she's got a phone and turned left and she's smoking a cigarette in  officer norman's right next door officer stores comes through the garage tells her immediately here under arrest put your hands behind your back and before she can even respond within a couple of seconds he grabs her left harm and starts twisting  behind her back she tells the officers i have a lit cigarette in my hand i need to put it out and she takes a step and reaches towards the cigarette butt cane in front of an officer norman helps her in that direction now i believe a jury could find that under those circumstances a reasonable officer on the scene would not have interpreted that this resistance we were existence entails that you're trying to prevent the officer from doing what it is he or she is trying to do is it a question of active resistance passive resistance and no resistance or is it just a question between active and passive and there's a reason why i'm asking that because the blas case it was a case of passive resistance and so the right was not clearly established and is there and i guess i'm looking for your argument as is there any evidence in the record that there was no resistance at all not even passive resistance but you know i believe that telling the officer that you're going to put the cigarette out i mean you're telling them based on her testimony i'm going to put this cigarette out so i can put my hand behind my back she's not saying i'm not put my hands behind my back or you're not arresting me and on i think that you would interpret that as no resistance but going to bleed they like to look at blue sick and look at the resistance kind of in a vacuum and then they consider that all takedowns are equal which your own pointed out that's not that's not the case and they were trained to do this particular takedown which is a violent takedown blaise it presented a very hazardous situation for the officers involved it was a high risk parole officer going to check on a parolee who had already violated his parole and when he gets to the door he knocks on the door somebody comes to the door looks out the people and retreats and begins to flush the toilet so this officers thinking he's flushing drugs and this court has said many times where there's drugs there's often guns and so he calls back up backup arrives they get the apartment manager to open the door and the two of them go in with guns drawn and they confront mr blaze who they know is not the parolee given that but he want to identify himself he won't say who he is they don't know if he's got warrants they don't know what is stories they know is a man that chose to live with a violent parolee so you can assume that in birds of a feather flock together there but he won't sit down he's in a towel but they don't know what's around them and he won't  so they can sweep the apartment for weapons and contraband and so they take him down and there was nothing really about the takedown and blazing that indicated it was violent i mean true he suffered a fracture but the court made sure to point out that it was a fracture a small chip fracture to his ankle but wouldn't when that all of that is true but wouldn't an officer in that circumstance at least look at the blaze act case and say look doing a takedown when we when i have passive resistance is not such clearly established law that i can't do it because remember we only according to qualified immunity only the incompetent you know don't get qualified immunity that's how it's been characterized so  least get to that far no no because there's still the threat and that's that's the threat to the officers and that's very important in all these cases if you look at all five of their cases that they those situations if you have resistance you can take somebody down but not here and that's consistent bear in mind they don't have any other gram factors in their favor but a minimal amount of resistance at most under stores version of the facts yet they execute a takedown that is so forceful it snaps or humorous into pieces it was a common nude in many broken in multiple places completely displaced sore shoulders no longer connected by bone or elbow spiral fracture ever humors i mean this one largest bones in the body all because of what they say is chambers on its head and it goes back to your honor's question about can you consider the extent of the injuries chambers says the extent of the injury is certainly relevant in so far as  of the amount of force used and the type of course used and here we have dr seminary whose orthopedic surgeon received his training at mayo clinic testified it takes a tremendous amount of force to cause this fracture and it takes a tremendous amount of torsion so twisting and slamming to cause this fracture that's the difference between blaze blazing suffered what the core call the small chip fracture to his ankle and the court made sure to point out that it was of it was a fracture that caused him no pain afterwards and that he didn't know when throughout the entire interaction with the police he suffered his injuries he couldn't tell if it was from the take down those from the on th on him afterwards or if it was from when they pulled him up and escort him out he couldn't tell you that that injury the court wasn't concerned about it because it wasn't relevant in the chambers that it didn't it wasn't indicative of the amount of force and it wasn't indicative of the type of force used they didn't take him down by his ankle this injury was just like montoya's montoya suffered the knee fractures the tibial plateau fracture of from the legs and in that case this court said no way can we agree with the district court that that's an on fortunate unintended consequence because importantly they were both high and copeland all stand for the proposition that when you have a nonviolent misdemeanor who is not threatening to the officers not threatening to others is not trying to flee and is engaged in at most a minimal level of resistance a violent takedown like this is clearly unconstitutional disturbance there were two roommates arguing this call was the roommates reporting that they got a drunk that's being ignorant and arguing not a crime not even an uncommon occurrence on a friday night two officers arrive at the scene both in this case and montoya's two male officers they see one female who is at the time they arrive clearly upset and yelling those officers try to sell the situation down and they don't have much luck so they alternately go to arrest the female for disorderly conduct same thing in this case and they have two males that put their arms put her arms behind her back one of them in montoya yells out quit resisting quit resisting and then they immediately resort to a violent take a take down so forceful it fractures one of the large bones in her body they high energy fractured the exact spot and in both cases the women needed to be rushed to the hospital and underwent emergency surgery they were both charged with the same crimes i think montoya actually the charges even a little bit more serious there was assault and resisting arrest but they were both convicted of only disorderly conduct that case is controlling here that's what white versus poly met when it's that particular  miss carles admits to pulling her right hand out of oster norland grip but that's not what her testimony is she was asked that twice directly during the her deposition and stated it was norland who twisted her arm behind her back in through to the ground and that action new orleans action caused her right hand to be ripped out and so our stores action caused her hand to be rip grip on your right wrist area i believe it was yanked out of his hand it was yanked out of his hand by one action officer stores twisting and pulling up further behind my back and slamming me on to the st so you're saying that officer stores pulled you away from officer norland grasp correct and to the extent that there's any inconsistency is later on and i don't believe there are but at this stage in the proceedings those are certainly resolved in your nonviolent mr mean it involved also on the montoya case couldn't be further from this case it's a person who was simply raising their arms and in consternation at the officer and the officer respond to to the allegations with regard to the resistance she was specifically asked that if you did you step forward put your body weight on the right side your body forward pull your arm up