good morning honors may please the court craig anderson on behalf of las vegas metropolitan police department officer sean green this is a section one hundred eighty three excessive force case where the district court failed to properly apply the qualified immunity analysis to officer green's use of force the undisputed facts in this case establish that he should have been granted summary judgment under both prongs of the qualifier you know it's just a question off the bat isn't isn't it disputed is it not disputed here as to whether the point if was still resisting at the time that the chokehold was applied it is true that the district court found to disputed facts and said therefore it cannot render a proper qualified right and so we could do we have any jurisdiction to review that yes you do i believe this case falls much closer to scottie harris than a george b morris under scotty harris the court said that if there is video evidence the blatantly contradicts the record the court can disregard the factual findings of the district court and scott b harris is very similar as you are well aware scottie harris was a car chase and according to the supreme court the district court categorized the facts as if the suspect was fleeing was trying to pass a driving test based upon his representation of the facts but the video showed quite a quote ok so let's focus on that lucy if you agree with me if we don't think the video clearly contradicts i'm going to call him mr t mr t s version of the facts in his declaration or his sworn affidavit then we don't have jurisdiction right now if if you do not agree i would nice to be honest with the i've looked at this tape his contention is after i was on the ground and not resisting any more officer green joke to me and you're saying we can tell from the tape that didn't occur no ok so i just we both agree i can't tell from the tape whether officer greene joked him or not correct but your question to me was whether then you would not have jurisdiction and my answer to that is no you would still have jurisdiction to decide the purely legal question of what whether the law is clearly established under this fact scenario because although you cannot tell whether he's resisting the moment he's on the ground the question is broader than that that is the plaintiff's testimony that he was not resist your hand we have to take it as true unless the video evidence clearly contradicts it and you're telling me it doesn't clearly can't write it well i was agreeing based upon your hypothetical except do believe i'm going to do it should not happen i've looked at the video it doesn't i can't tell whether or not mr t is resisting at that way at the time that he says a chokehold is being applied to ok and so and so let's assume that i reach that conclusion in my own mind does that mean we don't have jurisdiction to review the denial of qualified immunity here no because the issue then is you take his testimony you take that fact as true but you view it through the eyes of an objective lee reasonable officer on the scene where here we're basically looking at the fourteen second period after sergeant attempted to take the plaintiff into custody until he's rendered unconscious to the albion are you have to look at that fact that mr t says i wasn't resisting through the eyes of a reasonable officer who had just written witnessed twelve seconds of active violent resistance violent having watched the video is an adjective one uses when  going to the jury but i can conclude as a matter of fact that the resistance i saw on that video was violent but it's aggressive it was ok fair enough but you didn't that's not the word you used well because you have a six one three hundred seventy pound individual who is moving a pile of about five individuals which ever way he wants to go now he's look we're not arguing here about whether or not the officers had the right to take him to the ground and i think if that were the end indeed you got summary judgment on everybody else so if that were the issue clue establish you have no problem what he says is after they took me to the ground and i stopped resisting officer green choked me and and choked me until i passed out you played or until he went on so so let's assume that to be true i can't tell that that's not true from the video are you saying that even if that's true officer greene is immune because why absolutely and the reason is because what a reasonable officer having been involved in the totality of these circumstances recognize that after ten minutes of mr t s behavior within two seconds he's like ok i'm done he said he would recognize that there was a need to choke him into unconsciousness is that reasonable officer could conclude because once they began performing the albion are he was still on his feet that was still the resistance going on so how would a reasonable officer know that all of a sudden he subjectively decided to quit resisting based upon everything that happened i mean this is a ten minute encounter where the plaintiff had never shown any signs of compliance surrender you say it was a ten minute encounter where was their encounter before the video of the encounter begins within the club and yes that's on video where he's pushing an officer mr t is pushing an officer we have a video and for a long time mr t doesn't appear and then he appears on the video and it leads to the confrontation we're talking we're talking about the five minute video in the hallway the right radio of his actions inside the club as well i'm sure he is much just as aggressive and just as they feel they don't feel the need to apprehend him at that point but they definitely tried to apprehend him at that point but his group of friends surrounded him pushed him out of the club recognizing they were trying to arrest him they were trying to force him out now with what the plaintiff is saying is i was calm was walking towards the exit so his story is blatantly contradicted obviously by the record and i understand what you're saying but you have to assume that after all that is going on here and this is a rather unique situation i think you have a if he wasn't in a group setting i think your point would be better taken but here these officers also have to be aware of what's going on behind them that this could turn into a riotous situation and now you're placing this obligation on them to somehow use this superhuman judgment that ok is he resisting is he not while they're trying to and by the way i think this is a great jury argument and i can imagine you're not going to win if he goes to trial might my question is a different one which is that let's assume everything that this guy says is true are you saying that if somebody has resisted up to that point and has stopped resisting for a period of time the police officers nonetheless entitle to choke him well based upon the facts of this case ok based upon his behavior for the prior five now so let's assume he didn't let's assume that he'd been really disruptive up till then they wrestle him to the ground he stops resisting i can't tell from this video it looks to me like it's more than two seconds that he's flat on the ground he says once i'm down there not resisting some evidence before that that he puts up his hands and says ok and so at that point officer green chokes him now and then you're telling me that's a reasonable he's officer because he knew from the prior confrontation that he was difficult to apprehend well but also what based upon his prior behavior i'm talking specifically about the facts of this case what a reasonable officer be required to credit a momentary stop in resistance and give him credit for that based upon his prior behavior and the oh he's done now is it's well known that suspects sometimes play possum sometimes they they fake try to fake out officers and so based upon his behavior all the way through this a reasonable officer would not have to credit a momentary laps i don't see that on the tape you it may it may could it may be corroborating evidence for officer green's testimony but all i see on that tape is a is a pile of officers on top of a man whose legs are not moving that's i mean and on top of a man who's been resisting for ten minutes and so you know ok but i'm asking whether he was resisting at the time well and it from the tape i have to assume that he was not from the tape in his testimony you have to assume that he was not unless you find in the prior video because with with wilkinson versus torres which was not a video case if the totality of the record contradict from prior record doesn't help me to know doesn't help me to make any conclusions about whether he was still resisting after five officers took him to the ground i think it is it helps me if we if we were here on the other issues that the judge granted summary judgment on i'd say but looking at that why they say they properly took him to the ground but there's a period of time it looks to me like half a minute or so when he's on the ground where there doesn't appear to be any resistance and he says sometime during that period of time i was choked intermediate force was used against him so what you're trying to is parse out each second of this is he resisting is he not is he was this thing is he not what a reasonable officer confronted with these circumstances have to credit caress of lee resisting suspects momentary cease of aggressive resistance and let go and then if he starts up again go back on under both ways wait a minute he's got a bunch of officers on top of him he's a very big man to expect that in that circumstance all of a sudden he's going to sort of to his feet and resume his prior behavior that seems to me exceedingly unlikely because he is on the ground he's got a lot of officers on top of him so you're saying that well he's going to come back and do an exam thing that just doesn't  very probable but what you're asking yes well and that's because we're looking at this of course with the benefit of twenty twenty hindsight well that at the time off to reno that all the officers were on top of him he was one of them well they and they're all viewing that this an aggressive resistance and they're just trying to get him into custody because the minute that you know officer grant talking about aggressive resistance i'm talking about when he's on the ground of the officers on top of him at which point the officer green begins administering the chokehold and so officer green a that can't prove that he was who aggressively resisting it may it may be and it may be something that you can argue to the jury with your argument is we would handcuffed him as soon as you stopped resisting and therefore the fact that we didn't hand got to until he became unconscious meant that he was resisting the problem as i look at that tape and it doesn't show resistance it may well because there's five people on top of that he's punching the officers underneath but he says i stop resisting when i was was stopped resisting when i was taken to the ground and there's a long period of time long you know just momentary and he says that during that period of time i was choked and so assumed that was all to be true which i think we have to why isn't there that a question for the juror i think is not a question for the jury in this case and that would move you to the clearly established prong that this is a unique set of facts and because this there is such a situation going on here you have a group that needs to be controlled you have a group that has to be handled he is clearly a ringleader of this group he is clearly trying to incite the once they take this approach would it be reasonable but is there any clearly established law that under these circumstances and officer is prohibited from using intermediate force because someone quits resisting for five seconds or whatever a few seconds after five to ten minutes of aggressive resistance it kind of puts the suspect in control of the situation especially if someone is familiar with the law at that point that hey if i just fake like i'm done then they have to stop and then i can do whatever because it's his so i would say that there's no clearly established law that would put officer green on notice that under these specific circumstances and the cases that i would cite to be jackson versus city of  our versus bird now this court has stressed the importance of the safety concern when you're dealing with these groups situations and that officers are granted perhaps a little bit more deference under these situations i think i understand your questions jurisdiction all right that's as cleanly as i can state it now i understand your honor and i would just submit that in georgia versus morris when they define what a purely legal question is it involves contests not about what occurred or action was taken but the disputes about the preexisting well but law but i kept my discussion with your friend here is very helpful to me because we basically says look i assume your client's version of the facts is case tells us under these circumstances with our benefit of looking at the video it's a it's a melee of the legal term but it's not just one on one encounter there's lots of stuff going on there's resistance they take him to the ground it's relatively sure let's assume the police officer didn't absolutely need to choke him but it's in the middle of an emergency situation what case tells us that under those circumstances the officer should have known officers notice that's the whole idea behind this they need to know if they're violating clearly established law so get to give us what's your best go so i think our best case is bernard vs theobald officer theobald was also a las vegas metropolitan police department officer and that case an airlock atory appealed this court sent the case back to be tried which it was in fact tried in a jury came back with a verdict for mr bernard and in that case this court said at the time of the incident at issue here so i believe that's the best case i think that drummond and blanket horn also suggest probably frankly in a more general term that compliance when somebody is complian very unhappy history many people being killed in los angeles by the application of chokeholds and this this man was not killed but it was pretty darn close that is to say he passed out turn blue especially revived but he could have been killed would have been vegas metropolitan police department's policy and aggressive resistance is defined as punching and kicking there is no evidence in this record that that's what mr tamala mall was doing what he may have been doing for argument's sake is breaking the officers grip when he was tussling around wrestling if he was doing that by their definition that's active resistance and under active resistance under their own policy yes they're allowed to do the l v n are but they're only supposed to do stage one here is the court has already recognized they did not only did level one they went through level to level through three rendering him unconscious or you're position that if they'd only done stage one it wouldn't violate his constitutional rights so i think there is an argument obviously your honor is he wasn't resisting so no one if he was not resisting they should have done anything but just playing devil's advocate for a moment even if we take the position that he was actively resisting they're violating their own policy by taking him all the way to level three thought i thought to call a five immunity analysis and it's another one of those fictions a supreme court's come up with for us is that police officers read all of our cases and understand them which would make them better than most then me at least but so but i'm much sure that you can establish reasonable in this by saying that the department has put together a policy i'm not sure what i'm not sure why the department's po surely if you're acting against the department's policy it may be some evidence that you knew you were acting unreasonably but following it i'm not sure why it matters it does i think it goes to reasonableness your honor and i think that's why i brought the case that i cited to this court about bernard versus theobald is so important because we're using in that case the defendant also as an officer of the las vegas metropolitan police department and that case alone should have put that police department and those officers on notice that utilizing a chokehold on a non resisting compliant person at that point would be in fact excessive and violate their constitutional rights what's your response to your opponent's argument that you know let's accept your client's version of the facts let's let's even accept that  let's accept that that was true but a reasonable officer in in this office or shoes could have been mistaken you know reasonably mistaken in thinking that you know complete compliance had not been obtained at that point was the part of the inquiry that qualified immunity calls on us to make right that has qualified immunity gives a little bit of a buffer zone for officers they can be mistaken but if you know and you're not supposed to judge it and with the benefit of of reasonable does that qualified immunity afford yes but can i explain that because this there is a dispute as to the resisting or not that's why i believe it is a factual dispute that would have to go to a jury to make factual determination now if the jury decides that after reviewing all the facts that it was reasonable that mistake was reasonable then i think at that point the district court can certainly step in and grant qualified immunity after a jury if a jury has given a verdict for m enter and i would like to pick up on something that you stated about this melee things had in fact calmed down mr jamal mall was out walking out of the casino he did had have officers around him however none of the officers were touching him there was no screaming going on there he was simply walking out mr anderson keeps talking about these facts that occurred before the took place however in the deposition transcript of officer green he concedes that he has no idea what goes on before as far as with officer james or sergeant he doesn't he says i don't even see that all i see is some tussling going on with the other two officers and that's when he gets involved so his what he actually saw right before is a little bit more limited than what i believe officer green is submitting today versus bernard was a person that tripped while being taken into custody there was no group setting the officer perceived it was resisting and put him in a choke hold but he had not physically resisted prior to that point so your point has to be it's not the same because there's no case on point because there's no case that involves the context before he was taken down is this is not really the scent the centerpiece of your let's assume that there had been a man away let's assume that they just this guy they tried to arrest the guy and he did exactly what this guy did he put up his hands and he resisted and five officers are going to the ground and one of them joked him i have the big problem you have a problem in that circumstance you know judy because then you don't have the concerns about what's going on behind you what's going on around you that that this is been going on for five minutes usually when i'm here on a case it's a ten second encounter you know something happens very rapidly these officers have been dealing with this for substantial period of time and i would direct you to two saucier versus cats which is a supreme court case the says if an officer mistakenly believes a suspect may fight back he can use more force than appears necessary and that goes to a judge wofford was saying that there can be reasonable mistakes of fact i would say that if this person is he was much smaller as you said it wasn't a melee going on around them they just encounter a jaywalker on the street and he starts to move them an alien arm i have a much harder case you have to look at the totality and that's what we learn from she hand and i know you're familiar she had that you have to look at the whole situation as a whole blin horn was a kid standing in a mall he was never resisting he never tried to fight with the officers he was calm and one thing the court credited him blinking hort was the pace of events was slow this case did not have a slow pace of events drama it is interesting because that's the position l six year case from two thousand and three where the court judge reinhardt said it was ok to take him to the ground even though he was even suspected of a crime he was mentally ill the concern there was they kept their body weight on him for twenty minutes after he was handcuffed and restra