fletcher please born my name is tim four and i represent don blanton question in this case is whether the clearly established law by which this court decides qualified immunity appeals governs the trials that occur if the court finds a qualified immunity is not appropriate in a given case and this case we had a qualified immunity appeal and the court held the qualified immunity was not appropriate here because it was clearly established law that said under state law momentary noncompliance with police officers order was not enough to arrest for obstruction under federal law failure to follow and immediately comply with a police officer's orders was not sufficient and not an act of resistance and did not justify the use of more than trivial force and number three  significant intermediate use of force and not trivial force those issues were contested by the defense throughout the trial below they argued the trick to the tasers were trivial that they were the same as putting your hands on somebody that they saved injuries that they were reasonable they made all the arguments that this court rejected in the matters case in the discourse rejected in the appeal of this case to try and convince the jury that something was reasonable that this court held on appeal no reasonable officer could believe was reasonable well just a minute counselor i want to stop a little bit because i want to make sure i understand your argument it seems to me when the summary judgment came up to the court of appeals first time we were looking than at the facts as alleged by your client that's correct in other words whatever faction or client alleged they were the facts it did not matter what the officers were alleging what the officers had to say was the facts as alleged by your client did not violate the law that's correct or when it went back for the trial the facts as alleged by your client were not the operative facts anymore at that point the your client had facts and the officers had facts and those facts were presented to the jury and the jury could determine which of those facts they agreed with and which they did not and it seemed to be that when it went back to the trial court the jury believed the officers facts and not your facts and in fact said quite opposite to what your facts were saying that there wasn't a problem here so what is the problem i mean it seems to me that that's the norm the reason we allow officers to come up here on an ad hoc basis if you will is because there's qualified immunity an officer who has qualified immunity should not be put to trial and so we make the officer if you will take your facts and then say the  law as applied to your facts would still make them immune and we said it isn't so it wouldn't make them immune but when they go back they don't have to take the same facts they take what the officers say they take what your clients say they take whatever body else says and at that point they make a decision what did they do wrong what did the district court do wrong the district court let the jury pick the facts gave the law as appropriate and the jury said you were wrong what was wrong where did they go wrong what did the district court do wrong it can't be wrong not to say your facts are the facts  certainly not going to argue that of course not so what was the jury instruction what was the problem with the jury instruction what what the jury instruction was given i read the jury and struction given i read the jury instruction if you want the jury instruction given was the model instruction it wasn't well you're saying it wasn't the model because they didn't add a factor to consider where the warning was given they left out severity of the and supposing they gave the model instruction would you be here yes we would be here because there were other instructional errors and because accepting everything that the officers said we absolutely understand that of course everything the officer said is accepted as true if you still believe everything they said same fact basic facts exist the don blondin was standing with his hands by his side ma  no threatening gestures no threatening statements well it was but evidently the jury doesn't believe that well that nobody took the officers who had quite the opposite that what he did was i mean if i go three he want me to go through i guess he inserted himself into an already dangerous that way not what the officer said you're on that's what their lawyer said well that's what that is yuri found that the officers were saying they did not say your honor note rational jury could find it because no officer said that dunn blinda did anything other than walk up and say what are you doing to jack with his hands by his side he did not approach  blade stance one of the off he didn't say didn't step back he didn't be put his hands up or convey any willingness to comply they didn't say he came within ten feet they didn't say ignored as many as twelve commands to desist over a thirty second period of time they didn't say door that warning to step back or be dazed and arrested they didn't say he called what are you doing to jack that they didn't say the other events were happening at the same time i read the record i think they did say that well there were a lot of things they're here on and i guess i wish i would like to go over him one of the time if i had time i won't because i don't but what the the problem is that they did say and say they did say all those things what does it amount to it mounts to a failure to immediately comply with the police order that's the most it is there was never a threat and if you think apart it really this whole thing was a house of cards built by lawyers because what the officer said is that he shot mr blunt with a dog with a taser because he thought he had probable cause to arrest him and that's all he needs he testified i tell you to move you don't move i tell you are going to move you don't move i shoot you with a taser that was in the home as policy that's what he said the reason was all this rhetoric is lawyer rhetoric because think about this their argument is he was creating a distraction caused by officer shelton screaming and then by officer shelton shooting the taser at a man who was standing there saying and you can hear him on the audio what are you doing to jack in a normal voice tone of voice that's what really happened and yes we understand you accept everything the officer said about the facts but what they did was argue that the law they argued that it was reasonable to use a taser if someone doesn't immediately comply nine point two two what's wrong with the jury instruction they gave about the definition when on the definition of the crime obstructing a public servant because it did not include the element of actual instruction that washington line clues and that this court said in the washington court is more recently said in a in a case where a person ran toward the police ran back ran back to him ran again went over and over in the wash and supreme court said as a matter of law that is not obstruction what do i do with lasted or with last year you have a completely different kind of a factual situation you don't have it you have a situation where there is an actual physical obstruction somebody is in the way of somebody else remember mr lasater was in the way of mrs lathrop he would not let the police proceed with an investigation of him threatening to have somebody cut their throat and test the difference in this  jury instruction the pattern instruction because the problem comes in that if in fact the court of a regular general jury instruction and you argue they ought to give a specific instruction that will help your client in a particular way and the court doesn't give that instruction that somehow it's an abuse of discretion i've been in your situation before i don't like the general jury instructions either because they never help my client and i always proposed one specific to my client and they never gave them but when it is a standard of review which is abuse of discretion as to what jury instructions are given and do they cover the situation that's before you then i've never found a court to suggest the disabuses discretion not to give the specific instruction you want out of a particular case but when you have a constitutional limitation on a police action and the constitutional limitation says it takes more than momentary noncompliance you can't just say obstruct and not define it and then let counsel argue that momentary cotton on compliance is a violation of when he should have done was grant a directed verdict because there was no evidence that dunn blondin did anything other than momentarily failed to comply with this officer's commands and wash and law says that that's not  sufficient but the other thing the one point two to the standard instruction it was modified drastically because it it took out an element and it put in an element of excessive force it took out the element of whether don blondin had committed a severe crime that's the first element under graham versus conner the gravity of the offense for which the defendant is being arrested than planet was being arrested with this force of this taser these taser dart shot into him the gravity of that offense is the number one factor under graham versus conner it was taken out of this instruction over objection and instead it was put in the gravity of the circumstances so they could just say well consider everything well this court said momentary noncompliance with police officers orders is not enough to shoot somebody with a taser that's what this court has said so you can't just say consider everything you have to take that out because it's not constitutional to base the action on that that was the problem but the bigger problem was the undisputed facts where the don gone and did nothing more than what this court said could not constitutionally be the basis for this level of force and that they challenged what this court held and bank about the taser and it severely i'd like to save some time ok thank you it please the court richard jolley on behalf of jeff shelton and the city of snowmachine the first thing that i would submit is that momentary phrase used over and over again in appellants opening argument is a question of fact for the jury and the evidence that was presented at trial range from mr blonde and conceding that this went on for approximately fifteen seconds in his mind when he was non compliant  time that he admitted would permit him to get off of mr hawes property back to his property and even into his house to the time frame as offered by the scene witnesses independent witnesses civilians that were there on the sidewalk that put it anywhere from thirty to forty five seconds to one of the officers testifying that it could have been a minute so momentary is a question of fact and the idea that there is a lot of the case that applies that should have resulted in judgment as a matter of law because don blond and was only momentarily non compliant that is open for dispute in the courts well aware of what the standard is to find the judgment of matter of as a matter of law applies  i'd like to begin by discussing the arguments from the plaintiff that the rule of the excuse me from the the bonbons that the rule of the case somehow dictates that this verdict should be overturned we would submit first off that the law of the case doesn't apply here because that the district court didn't decide our scuse me earlier the night circuit didn't decide anything related to the facts as it applies to the parties and will readily admit that taser application that the ninth circuit has made it clear that that intermediate force but the appellant cannot point to a single thing in the record that would indicate that when we tried this case that we offered anything that would directly contradict the ninth circuit's holding that a taser is intermediate force the the record is utterly void of that in their briefing they assert that we argued to the contrary that's not true you can look through the record high and low and there's nothing there that indicates that we told the jury either through factual testimony or through argument that what happened here the application th taser was not intermediate force and just because the lower court or earlier in summary judgment that the court ruled that the taser is intermediate force or look to the holding and brian b makes pearson didn't preclude  the city and jeff shelton from putting on evidence as to what actually happens when someone suffers a taser application we put on testimony from an emergency room doctor from san diego california dr ted chan who has done studies funded by the department of defense regarding the impact of tasers and he explained to the jury yes it's intensely painful but the physical physiological impact of that is nothing more the after effects are nothing more than what one would relate to a brisk walk there's nothing contradictory about a holding that a taser is intermediate force and the defendant's putting on evidence about what actually transpired transpires physiologically up the first time absolutely looking at the comment to the use of force instruction at the comment references this court's holding in him and versus our in gosh what's because it's misbehaving because it seems to me that that's what your opponent your good opponent is arguing we went up on appeal and they said what the law was as a relates to this particular case and then when we went down to the district court they applied a different version of the law and therefore they applied it wrongly it seems to me that's his argument i thought at first it was they've got to have the same the jury trial the trial court has latitude to fashion the instructions the comment to the use of force instruction specifically references the language in smith the hemet that says objective reasonableness is that  mechanical application for objective reasonableness is not what the fourth amendment is actually dictating that mechanical application is incorrect and here we will concede that the crime that mr bl was committing obstruction while it's a crime it is a very minor one but the surrounding circumstances made the impact of the crime that he was committing to be very severe and tailored the instruction to read the severity of the circumstances that did not preclude mr blanton from arguing to the jury that the crime itself was in consequential he was allowed to argue his theory it was in keeping with the law and we think that the trial court was well within its latitude in tailoring the instruction and we think there's nothing contradictory about the instruction as compared to the ruling earlier on summary judgment so here's a question that occurred to me those repairing this case reading the instructions reading the our earlier panel's decision here and i've been doing these cases for a long time and i'm a little surprised the question has not occurred to me before at what point if ever does the qualified immunity standard drop out and this become merely a question of constitutional violation the instruction that i'm reading here is really instruction as to constitutional violation and there's nothing in here says the officer is protected if he is no if no officer would have made innocent whatever it is the the qualified managers and no reasonable officer would have understood that he was allowed to do this this just looks like a constitutional violation didn't you well based on my prior experience trying a whole bunch of these cases that it seemed like an exercise in futility there have been times when i have asked the trial court to that there's this should be a mix question of law in fact and it seems like that that is contemplated at least in the one thirteen instructions but we felt like that our our resources and our energy were better spent elsewhere the answer the question you didn't even a circle of immunity a trial i think is good i don't know why you discussing this is so but we did not assert the qualified immunity defense and we think that the instructions that were given were in keeping with the earlier summary judgment motion ruling and even if the law of the case actually dictated that judge dilly provide these instructions we would argue that it was harmless because we presented no evidence and we made no arguments that were in contradiction to what the earlier holding on summary judgment was we did not assert this is an intermediate force instead we just kept going back to the fact that this is a totality of the circumstances analysis and that this incident did not happen in a vacuum and i think it's telling that through all the briefing all the arguments mr ford still to the blonde and refused to acknowledge that this was a very volatile scene where you had a man actively trying to commit suicide he had already taken affirmative steps to commit suicide in that he had a hose running from his exhaust into the interior of this car is children had reported to nine one one that he always had a firearm with him and that he was willing to use it and that once they had the neighbor out of the car there was still a struggle going on for upwards of forty five seconds to a minute according to the officers the officers were so concerned that there was going to be bloodshed at the scene an ambulance was stage just a block and a half away and all of the other neighbors realized that this was dangerous there were two civilians that testified at trial that they said that they knew to keep their distance  one of them said i tried to keep something between me and what was going on over there because i was concerned quote about bullets buzzing by or going by so everyone but mr blondin understood that this was a volatile scene and now even after trial and here arguing about whether the verdict should be overturned the appellant's refused to acknowledge that this did not happen in a factual vacuum but instead that the officers were confronted with extremely dangerous circumstances we believe that the the trial court's instructions were well within his latitude they conform to the facts of the case it didn't preclude the plaintiff from the blonds from arguing their theories and that this  dangerous situation so you're an officer you go dangerous situation there's a man coming up saying what are you doing to my neighbor and you want to want to have a distraction you're standing there he's not moving he's not doing anything so what do you do you shoot him with a taser which requires one of the people who is trying to take the person into custody behind you can help you take him into custody it makes no sense it was the rhetorical power of these lawyers in the fear of the trial court to give the jury the law that made this verdict yes it would be a jury question what's momentary but the jury was never told momentary we asked the court to tell the jury that momentary about a momentary failure but they refused there's nothing in the instructions about that the if the instructions are proper you argue that we should nonetheless reverse because there's insufficient evidence under these yes yes i mean this is the whole argument is that he didn't move for in the news nothing about a minute there's no test for them and i know of there's testimony for about individual not complying there's thirty seconds stood there he wasn't doing anything chapman wasn't involved in this he was guards guarding it that's what he was doing nothing was happening until shelton started screaming and shouting fire that that's what caused the distraction that's what every officer said we accept their testimony qualified immunity was out of the case because the minimum the municipal liability was also an issue and they don't have qualified immunity and their policy said a teaser is the lowest level of force no that's not r s s factory answer so long as it would be of only the county were being so was that true only the counties minxes know both both were being sued they're both represented by the same people and it was then you or look at a transcript one fifty five i'm sorry i didn't put this in the opening statement mr jolly told the jury that it was just the same as walking down the rug and putting your finger against a something and having a little shock of three o five that it was a lower level of force officer shelton testified the defendant at e r thirteen that reduced injuries officer shelton testified again that was a lower level of force in e r to thirty six their expert testified that like to sum up we accept everything that they said this was a man doing exactly what this court said there were some distant questions of time and distance they would have different but what this court said the law was