we'll hear from mr thompson warning your owners mike thompson jr from the law firm of right and green hill in austin and today i represent three police officers who have been sued claiming they used excessive force making an arrest involving william slade sullivan back in march of two thousand and fourteen together my clients have over thirty years of law enforcement experience and i'm honored to represent them here today my clients are entitled to qualified immunity because despite the tragic consequences in this case they used measured and ascending actions and applied a reasonable amount of force to effectuate the lawful or d w i arrest of mr sullivan and that the questions that would help me if you answer because you use that term about an arm lock and i don't understand what that is i mean i saw i think there's several  in the record and i haven't seen them all but i've seen some but i don't understand what an arm lock is because the records show that well an arm and arm bar arm use of the hands to use a joint to direct a person in any various way because of that they train on it and that's how they use it they lost a joint and they told me that's the use of an arm so arms the idea was they were going to go actually in the step is you go to your knee as you bring the suspect to the ground that's the idea of the of the arm bar ultimately the suspect is going to the ground that's absolutely correct  and here so that the two problems from their standpoint is they have hold of his arms and he's at parentline completely drunk so he's if you read the cases the one thing that the cases focus on is whether the officers were aware of the fact that this person had diminished capacity well they clearly were aware of that and so that's i mean i'm not i'm i'm completely open to be candid about this case but the two things that are problematic is there wasn't any way he could catch him self but they've got his arms number one and number two they're aware of the fact that he's completely drunk so i don't know i don't know whether that answers the legal questions in the case but factually i think that i think if there is no question that the suspect was intoxicated they did a blood have and so the question of course is that they're confronted with is how do we get this man from behind the wheel of the car and admittedly dangerous situation are there two other those are fair questions and and in fact they did ask the suspect for the keys and he wouldn't give them to him that was in order directed to him and absolutely they put a car in front of mr sullivan's pickup wisely of course  to try to limit the effect of him driving off but i do have to disagree with the court that he couldn't drive off i mean if you see that pick up in comparison to a police cruiser we believe that it's reasonable that he might have tried to get away he could have busted his way through the big pickup and that could have been a situation that would have been even worse than where they were record reflect whether at the time they hold him at the engine was running at that point in time the engine was off with the keys were still in the ignition and under his control again until the officers either get him out of the car or get those keys away from him or by our belief is that he has the control over that vehicle and it's still a dangerous situation that that they can he can turn it on whether he's successful or not he has control of a deadly weapon you know in an in a value waiting of course responses to resistance we start with and we know that an officer has some right to use some force in effectuating an arrest and the other thing is of course that you have to decide what the conduct is or what the crime is d w i is a serious crime d w i kills thousands of people in this country every year in fact this court has noted that intoxicated drivers are a grave threat to the public m solomon was intoxicated he was behind the wheel of a car he was in control in two thousand and fourteen the round rock police department made three hundred and thirty one d w i arrests this was one of them the video of mr sullivan con as you just noted that he was intoxicated he was heavily intoxicated and in evaluating the conduct of the officers you have to look at the resistance and clearly the refusal to respond to verbal commands by an officer can be considered by the officer in evaluating the use of force this comes from the didn't the mercantile case that i know you're quite familiar with and both sides he said down on a couch they ordered him to get on the ground and he wouldn't and the officer used a taser and the court said that whether an officer's application of a taser to an unarmed and seated suspect who fails to comply with an order to get on the ground is not objectively and reasonable under clearly established law given that i don't believe that this four court can say that it's objective only unreasonable under clearly established law for an officer to use his hands in the tactic that they did to use an arm bar to remove a sedate a seated d w i cesspit who's failed multiple commands from his unsearched cab now the villain is heavily relied on by the athletes and at first reading it looks like it's a good case for them but after closer after closer read up believe it's as different as night and day literally mrs de ville was taking her granddaughter home in the evening case there's no question he was had to be arrested and taken to jail and deville it was a ten to ten mile per hour speeding ticket was not even a prosecutor was overturned the fine there was no probable cause and in our case again it was a ville didn't get out of the car when the officers ordered her to but there was a reason she said she was waiting for her husband to come and she had a granddaughter in the car converse lee mr sullivan here told the officers i'm not getting out of the corps because if i do you will arrest me in fact he should have known because he had been arrested about two months earlier he told the officers that you know diane you close the door on the officers factors are different than what we have here and salt of our record the material facts are not disputed about the level of mr sullivan's resistance by my count sullivan disobeyed over twenty commands to get out of the car to turn over his keys and to put his hands on his face when you look at the video there is one point where mr sullivan begins dropping his hands from view the sergeant tells him put your hands on your face at least by my c times or more course we know how important it is for an officer to be able to see you know person's hands because that's where the danger comes from mr sullivan does not he also as i said he told the officers he would not get out of the car because it would arrest him and he closed the door on mr so on from when the officer first got to the car and when he hit the ground less than five minutes well and that one of the things that the number of the cases there's a lot of out of the car and and and the amount of time that was involved here is very small by comparison with most of those cases they run ten minutes or longer trying to but i think again i don't know that there's any there's no firm rule but i'm saying that there is an emphasis in these cases on how much time the officers try to get the drunk person to do what they wanted him to do because  processing and i believe that we we used a reasonable amount of time here to do that to tell mr solved that again mr sullivan remember he was more conscious than those cases because he told the officer i'm not getting out of the car because if i do you're going to arrest me we know that he took the phone call when he was in the car he's not passed out like some of these cases he's conversant with the police officer he's listening to him i think that makes a difference and it in in the same thing is he's is huge i mean it's a it's a deadly weapon the other thing i wanted to talk about i think that is very important is the amount of force used to judge king's raised a question about the force but in thinking about it i would tie and sadly the suspect expired the court goes through the history of hawkeye's and they point out that there was no unconscious there's no per se rule that hog tie is unconstitutional so they found that the officers were entitled to qualified immunity i submit here this case is like pratt there is no per se rule that using your hands in an arm bar in this way to remove a suspect from a vehicle is a violation but clearly established law i believe this is more like dragged him across the field and they threw him into the paddy way this case is closer to that and deserves the same outcome there's no deadly force here that apple leaves talk about lethal force nearly through force deadly force those are clear terms of art and justice clear remind us that deadly force describes efforts to direct for sufficient as the direct forced sufficient to kill the officers of the desire to arrest the the other thing that is most important for their case the strongest point for their case is obviously mr sullivan expired sadly five months after the incident but the fifth circuit has said that you know in that practice the officers cannot be held responsible for the unexpected although tragic results of their use of necessary force at some point they had to take mr sullivan out of that car he wasn't getting out what was reasonable for those officers at that time and point in time they had to get him out he wasn't getting out and you could have waited all evening there's no evidence that he was ever going to change his mind the they did use efforts to temper the force they tried to negotiate with him to get out of the park they say we reacted too quickly but in pool versus the city of shreveport another d w i case traffic case the they found that you know arrest is not a part again they gave  would have known or other reasonable officers could have known what they did did not violate the constitution or any clearly established right and that they did not violate any clearly established thank you mr thompson you same time for about oh mr clinton please the court the officers asked the court to grant them qualified immunity either by holding that the facts aren't what they appear to be or that the law does not say what it actually says sullivan never actively resisted arrest nor attempted to flee but he when he failed to fully comply quickly enough to their liking the officers used extreme deadly force to pull sullivan headfirst onto the pavement curb breaking his back and rendering him a quadriplegic and leading to if you say that he didn't comply quickly enough and you can correct the record if mr thompson has misrepresented it but the record seems to indicate that he said i'm not getting up because i know if i do you're going to arrest me you're officers that have to do with quickly and that well when you look at the case your honor and you look at the footage in the video what you'll see is he's given a number of commands the first one is when they approached the vehicle he's on the phone he taps on the window and ask him to roll down the window he does do that all the way he asked him to get off his phone call in the case the undisputed evidence in this case is that he had gone to this establishment with the promise they promised him a ride home and then after the stain and drank excessively they refused the ride home so he told them he was going to go to the car and charges phone to call for a ride he was on the phone asking for that ride when the officer showed up so the officer asked to get off the phone he complied and got off the phone he continued to talk to the officer through this open window standing as close as i am to the podium and beginning complied with many of the officers orders now the officer ordered him to get out of the vehicle and it is intoxicated state he believes and it's clear from the video from what he says that it was a trap and if he stepped out of the vehicle he would be arrested for public intoxication so he said no i'm not going to get out because then you'll arrest me and tried to engage the officer in dialogue and as he did in a matter of seconds the officer he's on several occasions said can i ask you a question can i ask you a question the officer refused any dialogue at that point as soon as he did not step out of the vehicle the officer immediately went to what he called the extraction and to answer your question judge king what is an bar the evidence is clear in this case and there's other cases that talk about it an arm bar is where they twist the arm back and use pressure on the back of the elbow in this case to get the suspect to follow their command and the way it's used in kirkham talks about who's our expert is it's used with a controlled to set to the ground that's the key in this case the officers are trained to use the technique to force the person slowly and as the posing counselor said you're supposed to go to the needy then if you control the set to the ground now in this case we've got three hundred fifty plus pound man clearly intoxicated sitting in an elevated pickup truck what the officer say on the video themselves as wide and it's eleven seconds from when they open the door and your honor he doesn't resisted any point where they open the door in the doors on the lot when they open the door he doesn't resist you know they make these claims that he braced himself he grabbed the steering wheel none of that's on the video it's not in their reports right what he did do was answer a phone call which was his ride calling him back and he said hold on to the officer now the officer took that up maybe it's impatience maybe it's hubris but his failure to immediately exit the vehicle in his drunken state which is the court and it was this kind incident happens every single day the officer grabbed his his left arm twisted it and began the arm bar maneuver which the officer said themselves on the tape later that they would be brief and they weren't being recorded but that was a mistake because it forced him not to be able to shift his hips because it forces him forward the other officer immediately reaches across to the the steering wheel grabs his right arm that has the phone at right and they want to say he grabbed the use these arms to grab the steering wheel but he actually had the phone in this hand grabbed that arm both officers extracted him using an arm bar technique so it becomes a double arm bar technique both his arms are pinned back they twist him now in his drunken state judge smith i know that he does not he does not comply which i think this case is a huge distinction here between active resistance and compliance and i think that's key to the analysis given you call it passive resistance or not compliant what should they have done to get him out of the car instead of this double are you right well the obvious and our expert talks about how they're trained in this and they repeatedly see it in a in a highly intoxicated individual in this day in most cases you can simply talk to the individual and they will comply and that's exactly what the suspect was trying to do in this case he repeatedly asked if he can talk to that he's tried to explain what's going on here he's trying to explain i was supposed to get a ride home i'm calling for a ride home the officer doesn't want to talk to the officer doesn't give him a chance to have that abuse virgin's os is extremely respectful very calm asks him numerous times and in again as a cop calm voices an officer can do to exit the vehicle you think that was  not a willingness to i don't know that there is anyone to to talk your honor in the vehicle i think the ultimatum was and i think both sides were extremely calm we don't make an allegation that the officers or irate we make the allegation that the force they applied was unreasonable because what are its for tox about what they're trying to do is they're trying to use negotiation which the court talked about and in the numerous cases but in the developed case the court talked about how they jumped immediately to force  in chicago in case the court recently talked about how you have to use measured in ascending force in response to the force or resistance that's offered by the suspect in this case there is no resistance ever offer it's just noncompliance which is a huge distinction and so our expert talked about how they could have used taser they could have used the threat of it they could have used they could have even used an armed guard technique if they did it the way you would expect them to do it but what they arms there's a curb within feet and they admit that it was right there there was no place for him to land forcing him to land headfirst into the car and the pavement striking it from an elevated pickup force truck with such force as to break his his back and injury shoulder and the medical examiner in this case the city's own medical examiner said that he died from blunt force trauma which is a result of a homicide that's what the evidence is in this case using a taser using a stun gun anything would have been better probably other than using a pistol but the point is that the court has talked about and there's a two step analysis the first is it should you concede they do is no evidence that the officers knew of his preexisting condition he wasn't parked in a handicap spot i know there was the placard on the rear view mirror but they they claim that they didn't know i think that's probably a fact question for the jury to decide they say it would have made evidence do you have that they knew well there's a visible placard that's hanging right in front of them he also had a visible back defect it's the equivalent of like a hunchback your honor you could see it in him i mean the evidence was and they even say on the scene that he would have had a hard time getting out of the car quickly anyway the point is he wasn't given that opportunity in the state that he was in and what the court talks about is there's a two step process the first is is there a constitutional right and then whether or  not the law was clearly established at the time now the supreme court has clearly said over and over again that you have a costume and the right to be free from excessive force at the time of the arrest and that's are our dispute here is whether or not they use excessive force and if you look at what the court has looked at the grand factors the severity of the crime where the suspect present media threat to the officers and whether the suspect was actively resisting all of those way in our favor in this case  and specifically i want to talk about the active resistance because judge costa you talked about it and you wrote about it in the qur'an decision in that case you said that the suspect active resistance is the key or a key factor in the fourth amendment analysis of objective reasonable this and that case the officer the claim was that the person fought with the officer and her defense was i didn't fight i just jerked back and he grabbed me and threw me into the wall and that case was the gratuitous drawing into the wall is really going to develop case we've talked about there was a gratuitous i think push on into the car here or any force the course to cause this problem was related to the objective of getting the person out of the car but it was still gratuitous or honor it they went from with zero to sixty it served a purpose it might have been it might have been too much force but when you get to the clearly established part of the inquiry what's your best case because the supreme court has repeatedly said you don't do it at this level of generality of i don't write under going let me finish there's a right under graham to be free from excessive force so what it is to be more specific than that it's not a case one on one but more specific than a general what's your best case i think develops probably the but the single best case in that one the individual had every opportunity to get out they specifically refused to get out he was to say it was only speeding she was actually also charged with driving under a controlled substance right she refused to get out there was a child in the car the car was still running right the keys were in the ignition in this case when they asked him and they they gave him that shot of multiple orders at the same time when they ordered him to turn the vehicle off he turned it off it was tracked in on both sides there was no threat of flight in this case he was trying to negotiate with them develop they were trying to negotiate she refused to negotiate she refused to get out i also would look at the dos case which talked with the agent  pulled them out and they were burying stories about the level of force that was used and then the final case i want to share with you is the davis to be clifford case that the tenth circuit this came out with in june i didn't cite it my response to his twenty eight j letter but it's one it's two thousand sixteen w l three two four four eight three five and in that case the tenth circuit relying on develop tell that the individual  the claim for unreasonable excessive use of force where the officers of the car told her to get out she refused to get out unless the officers would guarantee her her personal safety they broke the window extracted or and through to the ground i and pull him down is all of their minds and you can see officers os actually flies backwards when he pulls them out because they used all their body weight to pull him out and keep his arms from catching themselves at that point i don't believe this is simple and they make this argument that he accidentally fell out of the vehicle right that they were trying to score him from the vehicle and he fell that clearly is not supported by the videos and the jury can decide that it's you but i think under clear precedent the idea of the the level of force they use i mean think about the rule that they want to create the rule that they say is that they showed up and they had reason to the rest and we don't dispute that the rule they say is we gave him a lawful order to exit the vehicle and he refused at that level at that point any does it all force we use to obtain an arrest is lawful that's their argument that has been soundly rejected by the courts over and over and over again and when they make the severed spine the force that was required and that's what our experts talks about when you throw a person to the ground and the seventh circuit case also i should point out which is in the briefing and that's the the phillips case the phillips is the shooting case there another case and seven circuits inside it where they say that the argument that an officer could throw a person with the full force and weight of their body to the pavement right to secure there when they're not actively resisting is is completely unreasonable atrocious i mean if this is the law if we create this rule every stop in which the person does not immediately consent then they're going to be subject to deadly force and deadly force is been defined as force that has a substantial likelihood of causing death or substantial injury why do you get the word immediately from this record i don't i don't i don't understand how you how you pull that that word out of out of thin air we've been here talking about the record and about the discussion that went on and and and how many commands he failed to a barrier or or because of a in the discussion between him and him and the officer i mean it's easy to use the word immediately but that's that's not that's not justified by anything in the record that we have i think i think it is your honor in the fact that when they showed up until the time the extract of them was two minutes from the time that he told them then you shorten that when you go to the time that he actually told him to exit the vehicle right there was this beginning discussion where they were simply just talking back and forth and when you when you look at what the police officers did you had the initial converse right and then their first choice of force is this policy this extract that's what they use he didn't comply and again there's a huge difference in the court talked about this in the bone case that we cite in our response to the twenty eight day that when we look at the officer's actions when we're talking about a misdemeanor suspect that when they when the suspect is not actively resisting and they say and trying to flee then we hold the officer is not in titled to qualified immunity and in that case all we have is a officer pushing the suspect up against the wall and she bumped her head and and he wants to make a distinction where he says in that case the crime was less  they were arrested in that case for disturbing the peace by to malta this behavior in violation of your annoyance more ordinance that perhaps quote acting in a violent or to mulch or this manner toward another whereby the property of a person is placed in danger or destroyed or damage that is a much more violent situation the officer was called in to in that case someone in the french quarter was throwing trash on top of another vehicle the officer showed up to this what could have been a huge fight in the push into the wall which is just at least in the plainest favorite just a purely sadistic act but what evidence in the record is it just the video that you're relying on to create a fact issue this was actually a shove or push on to the ground well i would describe i poll right up it's a poll in a pivot so they like when they trip from the arms back but and it's admitted that they use this double arm bar technique it's admitted in the record that they didn't that he didn't resist at all the officer said so at the scene repeatedly  they admitted that there wasn't a protected by judge method on the record they said that all it was was us point him out and he didn't fight judge bullet or i'm sorry officer b e that during the arrest said yeah let me call that a yellow pad which is to use the stun gun of the taser and then i asked him afterwards why you did that and he said well i thought he was going to lock up and i was calling for it so you could shock him so he wouldn't be able to lock up but then i saw he wasn't doing that so i realized we didn't need it so i mean the evidence in the case and the officers said over and over again that he didn't fight right so the point is you have an intoxicated neighborhood severely individual who can't get who doesn't actively resist he just fails to comply and if we begin to blur the idea of lack of compliance with active resistance to justify accelerated force then that completely changes the law i mean and i think i think i gave the court the tenth circuit decision the seven circuit decision this court's divel decision and there's been several of them t be active not complying with the officers order gives the officer the right of course to use some for the question is what level of force and the cases have repeatedly said it can't be excessive physical force what should have happened in this case is they should negotiate it right which is what the suspect was trying to do right then they could have used the arm bar technique properly and it that's not to bring it as a malpractise or negligence case they just the force they applied was different than what they could have applied or not read the district court's opinion on this did he in your view deny qualified immunity or just say i'm going to decide a trial he denied it summary judgment unquote if i mean he was actually trying to be more forgiving to them and saying i think i think his intention was to say look i'll revisit this but he was intending to the night on summary judgment because he believed that there were there were fact questions which is clear and credibility questions which this court has talked about in bone in the schmidt case law say when you're dealing with multiple defendants you know i think you've got three officers that is a qualified immunity analysis you have to assess the immunity specifically for each defendant where it talks about scenario and said you know their claim at trial was this was an accident we were leading them about any felony was accidentally injury and the court looked at the video and said that clearly is not true and so i think there's a credibility determination which can only be made by the jury which is what this court in fact in graham the supreme court said right who's version is true and i think the danger here is the rule they're asking you to create this court has repeatedly and most recently in bone three weeks ago said that you can only use excess you can only use excel or any force and be in type of a summary judgment when there is active resistance there is absolutely no active resistance in this case and you can't blur the word compliance with active resistance without seriously distorting fourth amendment law well but the problem with that analysis i mean i don't hear that they are urging that particular rule but we can always ask them but it seems to me that if if if that rule is true that you just announc true at all your honor because and we have never said in the law doesn't say that the officer can't use force they obviously can use force but the analysis requires them to use measured force in response as the code or sen through the active resistance of the defendant and so in the early stage of the court talks about individual is that a jerk could find in the end the reason why this is going to be a jury determination a jerk could clearly find that even though the suspect clearly refused to comply that the officers did not use negotiation for long enough so that would be the first step then they could find that they didn't use less forceful means what our expert is that in this case is  the force that they applied this double arm bar technique taking a man from an elevated pickup truck head first into a curb is a road tactic not taught anywhere in the nation and that the entire intent of these seizures examiner his opinion actually says that the deceit and died as the result of complications a blunt blunt force trauma with a significant contributing factor of angle lazing spondylitis there's no evidence that the officers knew mr sullivan had this debilitating preexisting condition the we do not agree i gather from from i guess i sort of infer from the record mr mr quinn made the statement that that  i mean we don't have a video of it but he had gotten out of the out of the pickup truck and gotten into the bar on his own in that come back up and and have climbed back a so climbing up into the pick up if you're that overweight and you have this  physical condition would be more difficult than and then getting out of it i assume gravity being what it is i think that's probably right and it's probably right and and again you know they talk about the use of the double arm bar and they say that it would be inappropriate this situation well if you look at the record and you look at the video in fact that's what happened saw an officer mayo is called to the scene and sergeant mayo says extract and so she goes to try to pull over her head this man who's three hundred sixty pounds out of the this deadly for the pickup truck and as she pulls him she can't move him she's not using excessive force she can't even use enough force to get him out she has to paul once twice maybe three times and doesn't even move the man he's not helping to get out he's just there and then sergeant saw sees the situation they have to get him out of the car so he goes around to get the other one and together they bring mr sullivan to the side of the car and they all fall out together there is no doubt that the officers intended to take mr sullivan out of the car and they were going to take him out of course there's no doubt about that and it's reasonable for them to do that he was a d w i suspect and as this court has or the court noted in the pool case as i said earlier an arrest is not a part of that sometimes when a person does not follow the officers orders they have to use force in order to effectuate the arrest in the force here was not excessive force here did not violate clearly established law and in fact they did try to negotiate and they tried to use the arm bar properly and they tried to to reason with this man in order to get him to get out of a car they didn't want to they didn't want to pull him out of the car no officer wants to pull somebody out of a car they hoped he would get out of the car on his own he didn't they had to respond to his resistance and that's what they did now the at the end of the day officers have qualified immunity for various reasons you know public officials they need to be shielded from personal liability so that they have reasonable room to do their job and that even includes the occasional wrong mistake if the mistake is reasonable i don't believe these officers made a mistake but if it was it was a reasonable stake of both the fact and the law there's no clearly established law that would have prevented them from their action at the end of the day i think that justice rehnquist pointed it out in his case and roberts versus luciana policemen on the beat or exposed in the service of society to all the risks which the constant effort to prevent crime and apprehend criminals and tails because these people are literally the foot soldiers of societ defensive ordered liberty the state has a special interest in their protection or as justice cost to put it recently in pratt versus harris county it is precisely for such situations when the existence of a constitutional violation is not beyond debate that qualified immunity provides a defense i suggest this is such a case we asked the court to reverse and render judgments for each of my clients sergeant ma