good morning to all of you people on behalf of the appellant's and i would like to reserve five minutes i always mess up with doing that but i'm going to try i'll try to help you out but i keep your eye please ok i appreciate that so without repeating everything we have in our briefs i did want to focus on a few issues i think the biggest issue here from our perspective this pall of five immunity we think the court correctly found there were tribal issues of fact with respect to the constitutional violations under the th and th amendment and the court as you know declined to exercise state jurisdiction so the question and a hot topic obviously recently has been qualified immunity what we think makes this case particularly important is and i think it's an undisputed fact the officers conceded and i think  separate statement item one hundred and thirty eight of the defense separate statement that they were trying that someone hobbled placed prone could interfere with their ability to bre trained in world where that if they hobble someone in this case there was a connection and as you know eventually a nd and rd hobble and place them chest down that could interfere with their ability to breathe and cause them to die and drum in the city of anaheim which we think is a very important case related to this case stands for two important propositions st although the facts are somewhat distinguishable it talks about the risk of restraint and positional asphyxia when having someone in a chest down position albeit in that case there was evidence of more weight applied than this case but drummond also said that the officers training should be considered not only in whether you decide whether there was a constitutional violation or not because obviously if they violated their own training that's a factor to consider but also a are well aware we've been criticized multiple times by the supreme court for defining the right at too high of a level of generality so when you look the fact of drum and it's quite distinguish well i other some distinctions the answer is yes however i would say with the supreme court saying that some courts and maybe even the th circuit is defining with too general a level i think it's been taken way too far i think what the supreme court was suggesting in part don't just cite graham and garner and say you can't use excessive force look more to the specifics i don't think we want to be in a place that if we can't find a specific case on all fours then the officers get a pass i don't think that's what we want in particularly not only drummond but we also cited the gutierrez case but that's why i get back to the training because when drummond basically says we're the officers on notice that their conduct would be or could be objective leon reasonable and when officers admit we were all trained not to do that because that can cause someone to die and then they do it and the person we don't believe that the officer should be able to be shielded by qualified immunity what is that training that if somebody is hop old you can't place on the on their stomach period or is it for certain or they have the outs involved and that with additional pressure on the back area but it's twofold judge when st of all they acknowledge that if someone is hobbled in this case they were essentially hog tied which we think is important you don't leave them on the chest for an extended period of time now which true there's not nothing specific that says it thirty seconds is it sixty seconds the defense is careful to argue in their paperwork we never had him just down more than two or three seconds because we know and they conceded this in their their paperwork we know that would be inappropriate but that never happened but that's a disputed issue of fact because we believe the time line the last time he was put in the car he was essentially chest down for five minutes now i understand they and that's what they basically all said in their initial statements then we get to depositions and of course at that time they said well i did say that in my statement but no one followed up and asked me how long so they conveniently said it was only two or three seconds but the evidence says he was just down when he was put in the car the last time when they claim that he picked his head up when they claim his feet were pressed against the window when the nd hobble was applied when the rd hobble was applied when the door was closed and when he finally went out and so i would say that their own training is don't do it put him on the left side as soon as you can and what's important judge when is one of the separate statement items and i think it's two hundred and twenty four thousand two hundred and twenty six the officer said we were to put him on his left side at some point we were going to leave him in the position he was in which we think is circumstantially supports he was not on his left side as the defense claims so as you know what the defense is basically saying he was never chest down for two or more than two or three seconds and he was on his left side but we feel that's highly disputed they also claim that there's an issue as to cause of death we believe the overwhelming evidence supports that he died of positional slash restraint is fix but the other point i wanted to make judge when with respect to drama is the weight because one of the distinguishing factors that judge walter considered is do you have as much weight in this case as you have in drama and the answer is you don't present drama and i think it was five hundred pounds one off adjusting there was five hundred pounds and brandt separate statement items ninety two and ninety three had his right foot on mr slater's left shoulder now this was during the about eighty six dollars seconds by the minute and a half that they were applying the nd and rd hop and we believe at least it reasonable inferences that's when he went out now they suggest he was moving in thrashing the whole time we don't believe that's the evidence in fact sergeant route said i never saw him talking or moving even during the application of the nd and rd hobble and certainly not afterwards another thing that we think six trimboli important is the fact that he when he was taken on to the car and put in a recovery position he was not breathing and unresponsive any paramedic that was there paramedic beard checked him and he had a pulse and then he checked them about a minute later and the p breathing stops before their heart stops so he stopped breathing but the heart was still beating for some time that's why he had a pulse if someone dies of merely drug intoxication without in  component the heart stops and simultaneously the breathing stops and the medical examiner and i'm not blaming her she had very limited information about the restraint she didn't know that he was prone and halt tide and chest down in five minutes she had none of that information and the way you diagnosed is with history you need to know the history to know what happened what position was again when he lost consciousness when he stopped breathing in two contributing factors we believe were the vomit which we think partially obstructed his breathing as well and we believe a portion of his face was into the back seat which also limit his ability to breathe was he moving some as he was restrained the answer is yes but we believe he was fighting to breathe and to live so the reason i mentioned the weight and the pressure by brant and gentry during the application of the nd and rd hopefuls we believe judge when that that brings it in the lump it's close enough to draw meant to say you can't have someone chest down now  and there was only one hobble here we have three hobbles you can't put someone chest down that alone we believe would come within the obvious even if there was no way to fly we believe having someone ha timed and by way of background mr slater committed no serious crime they knew he was nonviolent from past conduct they knew he had a mental illness and was five thousand one hundred and fifty he was arrested without handcuffed initially without incident they put him in the back of a car while handcuffed they pepper sprayed him three times maybe four while handcuffed we believe that was excessive they don't believe he was completely decontaminated then they put him back into the same back seat with all the pepper spray and put him chest down and it's clear that when you were going to transport someone and they thought they were going to transport them to the hospital for care you sit him up even the paramedics were there they called the paramedics that was good but they should have had the paramedics take him to the hospital what's so unfortunate about this this could have been avoided and they have the specific training and i would say judge when if they didn't have that training if they were nowhere at the time not to do that because someone could die then we would have a different discussion but when it's undisputed they had that training don't do that because someone could i think i better and maybe i can feel many of the questions at the end if that's ok thank you thank you very much to then i would like to reserve two minutes for rebuttal on the cross appeal you're out of the court should a firm summary judgment on behalf of the defendants under the st prong of qualified immunity for two reasons  st as to all of the outside of the car force the undisputed evidence in this case not allegation shows that mr slater was violently resisting despite multiple commands multiple warnings of force the use and after he had assaulted the deputy and tried to escape secondly as to the inside of the car the restraint force despite the allegations that place a put forward none of the admissible evidence in this case actually supports their contention that mr slater was restrained in a face down flat prone position for more than a few seconds what evidence of violence was there prior to his being pepper sprayed the st time prior to the incident itself all the deputies were aware of his prior conduct where he had violently acted towards officers what evidence is there of violence this time yes your own rights partners be helpers yes or seconds before the st deployment of pepper spray and after the multiple warnings after the multiple commands that work not complied with according to the deputy mr slater assaulted him by kicking him and then trying to push out the car trying to escape his confinement and it was  against the sole deputy that prompted the deployment of the st pepper spray that can be seen on the video on the video the angle that we can see is blocked by the car door so what you can see is you can see the deputy reacting to the kick and then doing the pepper spray but unfortunately the door itself obstruct the kick but we have the testimony and we have the other the sound effects that sort of support the idea that he is resisting at that point in time after that st pepper spray additional commands are given they're not there's additional resistance after the nd play the resistance accelerates it actually increases and he starts to force his way out of the car the solo deputy at that point has a choice he can either face a suspect who if he gets away can overcome the could head but of can kick him could knock him down could take the keys could harm somebody he could either regain control of that suspect or not and he chooses to try to regain control according to his training by getting him to the ground as quickly as he can he the suspects momentum as he's coming out of the car to thrown back down to the ground and then on the ground he tries to overcome that resistance and we can see this in the video we can see the suspect despite being and have custody violently resisting trying to get up flailing rolling all these other things that we can see in the video consistent with the deputies account also i was curious page nine of the district court's order which is your twelve that's when the district court really kind of engages in the qualified immunity analysis in this case and there's a couple sentences the district court wrote that i would wonder if you could help me understand and i may ask opposing counsel their take on the same equal time right in the middle of page nine the district court writes it is clear from the evidence that brett merely places foot against slater shoulder what i wasn't clear st what evidence the district was referring to in th relying upon there was testimonial evidence and video evidence if the court direct its attention to the composite video which is supplemental record page twenty exhibit one the composite video is the one where we see multiple angles shoving it sideways into the car and the reason he's doing that at that point is at that point mr slater is trying to slide out of the driver's side of the door driver's side door sideways as though to escape so the pressure is applied to the top of the shoulder which is that is a sideways position it's a lateral pressure not a downward pressure and that video evidence is corroborated by both of the deputy's testimony so i believe that's the evidence the court was referencing in terms of why that's relevant the qualified immunity analysis the qualified immunity analysis as this court is well aware after casella depends entirely on what set of facts heart issue in the particular case in front of the court and whether or not there was controlling authority with similar facts that would have put the deputies on notice that their conduct might have been on constitutional so in analyzing whether or not the facts of this case are similar to a prior precedent was some of the facts you have to get into the actual not that that makes total sense i guess my question though was it seemed to me that at this  district court was weighing the evidence at the qualified immunity stage as as opposed to taking the plaintiff's version of the facts in the terms of qualify you apply and that's why i'm yet you to the factual comparison it can be tough sometimes but i thought you had to assume the facts as the players wanted them before you could engage a qualified immunity to tell me or tell me i'm i'm wrong and why you're not entirely wrong you have to assume the place version of the facts to the extent they're supported by the evidence when you're evaluating qualified immunity whether you're evaluating just qualified immunity or regular summary judgment evaluating just feeds of fact you look to evidence and evidence that supports reasonable inferences of disputes a fact and here the evidence did not support the allegations the disputes the plaintiff were contending plaintiff can get up here and say anything that they want to happen but if it's not supported by the evidence you don't get to a genuine dispute of material fact well what about the fact that the mystic lebeau had outlined in his  arguments the fact that the officers were trained not to play somebody who has been hobbled particularly here in this case three different restraints chest down and the fact that officers had in their initial statement indicated that he was chest down for about five minutes and that coupled with the training i mean i know that the deposition testimony very easy in terms of the time estimate initially inserted into the back seat in a face down or chest down position and even is it as initial interview sergeant rude says he was slightly canted i e on his side when he was in that back seat it's not until their depositions that for the very st time in relation to this incident that the deputies are asked how long was he in a chest down or flat face down position and all of them testify consistently he goes in chase chest down flat face down but he's immediately turned on to his side now in terms of the judge's question regard to the training the training is that you don't want to keep them flat prone face down for any longer than is necessary to secure them and once they're secure you're supposed to roll them on to their side and the deputies here complied with that training as soon as they had him in cuffs as soon as they had him hobbled they tried to put him on his side the problem was that even in the back seat mr slater continued to violently resist and we can see this on the video after h and that i've see he starts thrash around we can see him pop up in vertical we can see him slamming his back vertically against the back see that car then he goes horizontal at one point we can even see a foot below the door line as he's trying to do whatever get out we can see him come out of the passenger side of the vehicle one point so the devils are doing everything they can to restrain him according to their training and their training as if we can avoid keeping him in a flat prone position we should and they did which is why the only evidence in this slater's back in a certain point and he seemed to conflate that moment in time with a moment time that happens later when there's a foot against the top of mr slater shoulder it's important to remember that those are two completely separate episodes the need of the back by gentry occurs when we're outside of the car before he's placed in that car the final time before the decontamination when it's just gentry and so deputy d z and mr slater is resisting deputy gentry is trying to hold mr slater down despite the resistance at one point mr slater bucks gentry falls for an in his knee lands square in the middle of mr slater's back and it stays on that back for about forty seconds but then afterward when he's outside of the car in the st hobbles applied mr slater is seated upright for over six minutes in fact at one point we see him wiping his face on his knee presumably to get the pepper spray off is then decontaminate he's taken to the water station and washed off and it's later in time that is then placed on the back seat and the evidence in this case is that when he's placed in the back seat at no point in time does he have any body weight pressing down on his torso the evidence in this case is that when he definitely put in on his stomach and then you're saying that all the testimony from the officers indicated that they then turned him on this on to his side as soon as he was put in the car correct your honor and in the video we can see him go non horizontal as i mentioned in the video we can see at about the fourteen thousand one hundred and twenty nine mark so at one forty one am in twenty nine seconds we can see mr slater move from a horizontal position into a vertical position in that backseat and what you're looking for is you look for the darkness converting to the white and then you see the white moving back and forth that's mr slater you can see his head this face slamming himself vertically against that back seat so the idea that he's horrors all the entire time is completely disproved by the video but more importantly in terms of the evidence that plaintiffs try to point toward and in terms of supporting the contention that he was flat prone and that actually the entire time the only evidence cited in this case to support that contention was the testimony of a paramedic here but the problem is that permit beard never says i saw what his position was on that backseat paramedic beard says i saw him go in chest down and then after that i could not see what is position on was on that backseat at all and our position is that if the evidence is i don't know versus witnesses who say it was a certain position you cannot create a genuine disputed material fact based on i don't know i don't know is that kill ation you can't even get to a reasonable inference of i believe so i believe we referenced the use of force as a outside of the car forced the pepper sprays the knees strike to the thought i the st hobble and the inside of the car force the nd and rd hobbling we find that a little bit even if even if mr slater was in a flat prone position the evidence in this case is nonexistent of any body weight being placed on him in that position and that's the price case shows when you have  resisting suspect who is placed at a prone position for some period of time to overcome that resistance restraint force is deemed reasonable as a matter of law there were a couple other points in terms of only person who did by the way found no evidence of any vomit and his lungs no evidence that he is fixated whatsoever no signs of hemorrhaging which would be consistent with this fix yet no evidence supported the idea that he that is fixing a cause or contribute to mr slater death which is why dr suman found the sole cause of death to be methamphetamine because he had five times the fatal amount of meth in his system the plaintiff's expert that they rely upon to try to create a disputed fact same aside the fact that stupi expert opinion particularly conclusory expert opinion by itself cannot generate factual disputes is not based on any evidence in this case dr howard cannot point to a single witness who supports the notion that mr slater was restrained for the two plus minutes he would have need to have been restrained in order for him to speak ca he can't point to any medical evidence showing vomit in the lungs you can't point to any hemorrhaging or any physical external or internal signs that would support death by spicks it so the idea that there is actual evidence in this case to support plans contentions is not consistent with the evidence and therefore there cannot be disputed fact and on this particular set of facts defendants were entitled to judgment as a matter of law thank you actually over time now mr kelly thank you with respect to the cause of death we feel there's very strong evidence to support that he died of a six year as they indicated earlier dr hollerin as a chief medical examiner for ventura county for almost thirty years and as i mentioned you know we have a dead person here and there's one circuit authority that says the court should very carefully scrutinize the record when you have a dead person the person who would be able to say no this is what actually happened is not here that's why in their initial statements every time they were asked ok when you put him in what was this position chest down ok when he was doing that what was his position chest down nd hobbled what was his position chest down rd hobble chest down you said he stopped moving what was his position chest down every single time they were asked  eleven a sergeant and it was kind of a leading question could he have been slightly candid to his laugh slightly for them now to come in here and say they was never chest down for more than two or three seconds is not supported by this record and if you really think about it how in the world could he have been on his left side the way he was hobbled three ways his feet pushed up towards his box in the back of that car and how did he happen just to end up just down when he became non responsive he clearly was chest down obviously they realized by the time of the depositions that doesn't look good so since no one asked you specific times in your statement would just say it was no more than two or three seconds and hope the court bias but in this case as judge jones said we got to take all reasonable inferences in favor of the plaintiffs and i do agree with you judge owens i think judge walter on some points was weighing the evidence was looking at together dence and maybe deciding in his mind that he thought some evidence was more  other evidence but as you alluded to that's not the proper standard for summary judgment you have to assume all the plaintiff's evidence which i think was well founded in the evidence and take all reasonable inferences from that evidence i also would suggest that the comment that there was no evidence of any weight at all or pressure applied to him while he was just down in the back of the car is inconsistent with the record as well and you know some of these some knee and the autopsy photo showed bruising to his back right in the area where they said they were either headed lou your foot on his bath and they were holding him down they didn't want him to move it wasn't enough that resisting i would suggest this is not violent resistance and i would also suggest that these officers exacerbated the situation you have a mentally ill man who's who's handcuffed who's in the car there was no contact kick before he was pepper sprayed as judge and two pointed out and they pepper spray him three times in the face and they say boy after that he really wanted to get out of the car i wonder why so getting back to our  point we believe that drummond and gutierrez and their undisputed training that you're not supposed to put someone hope tied chest down with or without weight is enough for this case to go back to a federal jury and we do take and we believe taking all reasonable inferences in our favor there was pressure and weight applied to his back while he was in the back seat and that's enough to come within drummond and with their training enough to