you actually have eric see darden as administrator of the estate of your main garden versus the city of fort worth officers of the fort worth police department and left to die in handcuffs while he was undergoing a massive heart attack the district court concluded that neither the city or the officers violated his civil rights when doing so because according to the district court the evidence conclusively established that darden was resisting arrest that the officers were engaged in regular police activity in the dark as death could have resulted from natural causes accordingly the district court concluded that the officers were entitled to qualified immunity and that the city could not be derivative reliable and that all parties were entitled to summary judgment this court should reverse that ruling for three reasons first and foremost as discussed at length in our briefing there is a genuine issue of material fact in dispute as to whether darden was resisting arrest and the amount of force the officers actually used at the time because the court failed to use the proper standard of review in a summary judgment proceeding this case should be reversed although i'd be happy to answer any questions you have about the evidence in the record that supports this contentious factual dispute i think the answer to in this case ultimately turns into very important policy questions assuming you find it a dispute exists ask them back question whole thing starts and then he's on the floor what's the significance of that gap here and to what extent does testimony fill in the gap i think  is extraordinarily significant especially because the district court appeared to put all of the weight of its opinion on the idea that the video conclusively established garden resisting arrest and it plainly does not in fact there are two officers th both had go pro helmets that ran into the house and you can see the two videos that are in the record one of them runs directly by mr darden you can see that he comes in he has his hands up he's attempting to comply the officer makes the officer the camera on his head makes no attempt to see what's going on he runs into a bedroom to search for contraband the other officer runs right by mr darden runs into what i guess you could call the dining room and proceeds to point the sheen guns at pregnant women and small children and make sure that they stay on the ground the video also shows incidentally that as the officers arrive they're joking with each other about looking forward to i think somebody up and lamenting the not existence of fried chicken restaurants in an african american neighborhood that's what the video shows the idea that the video somehow shows mr darden resisting arrest is simply false there's just no showing of that whatsoever but there are certain points where he gets up on it from aids and gets up at it couldn't that of bridgeable officer she is resisting arrest because pans through the doorway as you simultaneously hear on the audio track of people saying he's got asthma he can't breathe and it could be a reasonable juror could look at that hear the audio and just as reasonably conclude that this person is having an asthmatic seizure as he is attempting to resist arrest they could also reasonably conclude that if a three hundred fifty pound man was attempting to resist arrest against two officers with machine guns that perhaps the two officers that were standing within thirty feet might have done something about it instead they did nothing about it they continue to look through drawers and closets or to make sure that teenagers were stayed on the ground they simply at least at the very least effective you and i don't think the facts of this case require this court to draw some type of bright line rule that anytime someone gets on their a moment ago both what they were being told by other people in the room and what they should have known about a person of the sun and the danger of him being on a stone maybe other dangers as well jenison of can port of your case that we need the the for officers to be alert to what other people are saying as well as having some sort of knowledge of the risks and bob in dealing with a person of this i would say yes and on two fronts first it's und evidence in the record to show that the fort worth police department issued general order three fourteen and that should have been a part of the training for any officer that's a member of that department and outs and order three fourteen specifically deals with position in large of these suspects and officers should be trained to know that when you're dealing with someone of a certain size that there are certain complications that can arise now to be clear i have not arguing that anyone who is obese or anyone who is large somehow is exempt from complying with police demands that's not the point here what we have is multiple witnesses yelling he has asthma he can't breathe and the office is plainly ignoring them to the contrary he better settle  better settle down then is what they tell ok is opposed to over really he has asthma we may treat him differently ok there's no suggestion that he's reaching for a weapon there's no suggestion he's trying to escape there's no suggestion at all we have three eyewitnesses the say he's not resisting and trying to concerned if he's not subdued in some way not moving around reaching for a weapon and a run of them under the shelf and that sort of thing how does that fit into your analysis if there was evidence that he was reaching for a weapon or trying to re sofa or trying to do anything furtive one way or the other perhaps we have a different case here we just don't have that evidence we have evidence from three eyewitnesses who specifically say he was complying with all of their demands that he wasn't resisting arrest and that we were informing the officers health condition and that the officers ignored all three you know again we don't need a person a rule from this case what we need is a jury to turn to determine whether these actions were reasonable or not and that's what the district court unfortunately denied our client now i think another problem that the district court's opinion has is it suggests that even if these actions were unreasonable as a matter of law they're entitled to qualified immunity because using a taser is a regular police practice now and i think that is simply incorrect i think there's legion cases starting specifically with this court's most recent opinion and pardon me gonzalez versus grittier as was the city of san antonio as as well kitchen versus dallas county that suggests that you do not have the opportunity sorry but a suspect has the opportunity to comply and a compliant suspect regardless of whether he's already handcuffed a compliant suspect is not subject to excessive it should not be subject to excessive force it's one thing if you have to wrestle someone to ground or you have to tase them because they're simply not complying but again there's a fact issue here the eyewitnesses suggested mr darden was complying and yet they chose to taser him regardless and that is the question that ultimately the jury should be responsible to answer is this type of force excessive under the circumstances and in the absence of any conclusive evidence which the district court found but with with which we disagree conclusive evidence of resistance or noncompliance there that exists a legitimate question of fact as to whether a taser is certain practice clearly established to be deemed excessive force and this court looked at the use of a hog tie on a suspect who had been detained for drug use the he was kicking about and flailing in the back of a police car they thought he was a danger to himself and others so they tired leg irons around his feet and tied to his hands behind his back placed him in the back seat of a car on his stomach and when they arrived at the police station he died of positional asphyxia because he couldn't breathe it's that big what is the closest case you have specific to a level of generality what we want to look at is were the officers with a reasonable officer have known that using this level of violence or alternatively positioning someone of this person size on their stomachs that they can't breathe is that excessive and in taser when someone who's having an asthmatic seizure and you fire electric current into their back the possibility of death is certainly warrant and this court noted that into the areas i think is one of the issues that i'd like to address briefly i see my time is almost up the district court also noted that summary judgment was proper because mr darden was an obese man and the death certificate noted that he died of natural causes and therefore suggested that because he was obese and therefore somehow prone to having heart attacks that the excessive force was not the only cause of his death and therefore summary judgment is inappropriate and good here is plainly speaks against that and if you look at the court's opinion it notes that there was a supplemental autopsy done where they said that the positional asphyxia caused by the officers treatment of him was a contributing cause to his death in addition to the fact that he was high on numerous narcotics but the fact is you it was a contributing cause to his death and that the police had some involvement with it was sufficient to allow for a denial of qualified immunity to the case to go to the just to go to the jury and that's exactly what we have here we have a case where the officers may have exacerbated a preexisting condition but they did so if deemed to be excessive an scenario well they likely would have died anyway so therefore it couldn't possibly excessive force and were off the hook you didn't mean a pretty shot literally did it perhaps poor or good choice of words regardless of the other reason i wanted to thing i want to address i think this is perhaps the most important respect to the clearly established law if this court suggests that we have to have a virtually identical verbatim case on point in order for the law to be clearly established it will essentially freeze the development of will get started the united states supreme court in michigan versus summers recognized that because the execution of a warrant to search for drugs might give rise to sudden violence or frantic efforts to conceal or destroy evidence the risk of harm to both police and the occupants is minimized that officers routinely exercise and question the command of the situation and this fairly routine excessive force qualified immunity legal analysis although a terribly tragic outcome because mr darden suffered a heart attack and died at the end of the encounter officer snow was tasked with being the entry man in serving a felony drug warrant into a house containing numerous occupants interesting encounters the primary suspect a three hundred fifty pound individual who officers no had no way of knowing if he was a three hundred fifty pound lineman or a three hundred fifty pound person with health problems he sees a guy every officer is commanding him to get on the ground other officers are taking control the rest of the scene officers know commands and to get on the ground he instead he reaches over the back of the sofa officer snow grabs his shirt tries to pull him off the suspect resistance is such that the shirt rips off his body he wrestles him to the ground eventually with the help of other officers commanding him to surrender commanding him to give his hands he recite them in my brief testifies that well he wasn't resisting he was only struggling against the officers efforts to control him because they believe he had a breathing problem but the measure is from the perspective of a reasonable officer and that tense uncertain and rapidly evolving situation what would be reasonable to perceive under those circumstances and they were encountering a suspect who was resisting he wasn't getting on the ground he wasn't staying on the earth that witnesses did yell out  and tell the officer he has a has asthma he cannot breathe yet wouldn't that have put the officers on notice that the man might have some breathing issues you're insolent ignore those comments by those people you know you and incidentally the same witnesses are also yelling at mr darden to stop resisting but these officers even if they are hearing that in the din of what's going on in that situation the law is clear you don't have to stop what you're doing you don't have to accept what a suspect says when he's in the process of being handcuffed they were using reasonable force reasonable sending force to taser deployments after he refused to surrender his hands if they had known without any question that there were no weapons in the house that he wasn't nonviolent he was not a threat that he was suffering some fatal illness if they'd known all of that maybe in hindsight we could say they could've used some different procedure but that's not what the case they were facing video that shows some of the testimony that you say is in way consistent in that plaintiff's witnesses are merely saying that or acknowledging that he was moving around as the officers were trying to control him whatever reason was would not have been known by god but this does seem a difficult case to resolve them summary judgment without better the deal evidence there is nothing beyond what the courts call a metaphysical doubt being raised by plaintiffs because there are some particular gap and time where we don't see one hundred percent what's going on what we see on the video is what we see on the video that is undeniable and what we don't get the gap in between is is them getting him to the ground there's no allegation below or in this case that getting him to the ground is the harmful event that we're talking about here it is the struggle afterwards the use of the taser is being argued it's a hodgepodge of things but there's no doubt among any of the witnesses police or so williams alike that mr durrant was not complying and from the very instant you enter he's not complying get on the ground get on the ground he reaches behind the sofa and two things beyond these factual issues that i know because the outcome was so bad we want to examine as closely constitutional right of mr barnes in the face of any clearly established law and the law is clear that in order to find clearly established law the point of and just this year the supreme court told us again the white versus bawly must identify a case outside the truly obvious case where a suspect already been handcuffed and he's been hit after being handcuffed not the case here the point of most identify a case where an officer acting under similar circumstances violated the fourth amendment i know judge king is written on this in cases recently just prado and this plaintiff has never even attempted to identify such a case in the district court not in this court until its reply brief or they've come up with the idea that because he was so obese the officer sort of been on alert to do something different when they did use some other type of force perhaps it's not clear they cite one seven eventually stood up while trying to be pulled by mr officer snow then wrestled to the ground but again there's no controversy that it took something to get him onto the ground and there's no allegation that that something is what we're talking about here that's why i know the armful of here is how because if you look at that video just exactly how person of that size it's going to get you never have a problem getting out of a sofa how somebody like that size is continuing to push up being told to get down to even after the right hand is handcuffed you see him pull his left hand away put it underneath his body and that's the only time an officer ever gets on top of him in the video is to get on top of him and pull that hand out there other officers around trying to hold him down but he is continually pushing up getting up on his knees and the burden is on the plaintiff to show what the clearly established law was but to look at one case this court case and carol vs ellington two thousand and fifteen much more troubling facts from a use of point point of view but very similar facts from a suspect reaction to the police point of view in that case a completely innocent s met the threshold of reasonable detention the officer engaged him and he refused commands he refused to get out of the chair when commanded to get on the ground and the officer immediately resorted to the taser and by the time that case was over he had been struck with weapons kicks punches i believe and tell us there were thirty five separate taker deployments he ended up dying this court said non lethal force was used throughout he was not obeying commands officers had no way of knowing what threat he was posing what he was resisting that's a two thousand fifteen case where if a reasonable officer looks that case and similar law there's no way an officer going to come to the conclusion that i can't go into that house and make this man who is refusing my commands get on the ground using the very minimal amount of force in this case tragic outcome admitted the force of reasonable the law is not clearly established certainly that they did anything wrong or that it was the constitutional question is beyond debate on this one i don't know what else to say about the tragic aspect of it residence of mr dorgan he was stationed outside the residence in front of the open front door after it was saturday in the battery  for the purpose of apprehending anyone who tried to escape through the front door from that vantage point he witnessed a struggle in the living romero and told him that he would in fact stand in for america when guarding this road or if he wanted to go assist with the struggle that was occurring inside the house and it was obvious to all he could see so by the time romero gets in the house mr gardner is already on the slope there is no gap in the video with regard to his activities inside the house the video clearly shows him interesting the front door and assist admitted that he indeed did kick mr darden wants in an effort to subdue him because he was resisting efforts to place his hands behind his back three times the autopsy report which is included in the plaintiff's exhibit shows th force may be used to subdue unruly and cooperating individuals well if any means somebody here arguing that your client kicked this man in the head yes i presume that's what they're arguing how did he is there any testimony in here about how he got this abrasion on his had you know and there were three other officers derivative issue from the officers motion for summary judgment and that the court determined that because there was no constitutional violation the city could not be liable i think that would not mean that if we that would have cost a constitutional violation the court at the trial court did not reach that issue because it determined that as a threshold matter there was no constitutional violation so to the extent that there are that this court finds that there is evidence of a constitutional violation that issue as to whether or not the city is still entitled to summary judgment based on its arguments as to policy practice or custom are still outstanding and could be remanded back to the trial court for our determination or based on your own determination and judicial economy because it is a no evidence summary judgment motion that the city filed you it would be a good idea i would guess is not the right way to say it but it certainly could be remanded back to the district court for further determination of that of that issue how does the the general ordered to the city had cautioning police about how to handle overweight people and that they shouldn't be put on their under stomach because they might have a hard time breathing or whatever the horn and chant i did but behringer what effect should that have or does it have on on th that the officers acted in accordance with that general order if you look at the video i would also submit to you that that general order is not specifically toward people who are of that size it is a general dentist order that deals with people who are in prone positions and that the inherent that there are studies that show that people no matter their size being placed in a prone position has some danger to it the general order specifies that under circumstances such as that especially after a struggle the person should be signed up as soon as possible and monitored and if you look at the video you will see that that is exactly what happened in this case the officer and mr darden was at some point position with an officer behind him actually supporting him because he was leaning up against his knee i would also say to you a couple of things that the record shows the record shows that at the time that this more of this no not more it was initiated police had met star the city the city of fort worth ambulance service stationed near the location in the event that there was a medical need police as soon as they knew that there was a need for medical assistance asked them to get there there was some kind of miscommunication the city doesn't dispute that it took longer than normal for m get there the city officers at the scene made a second call to say why or to hear again this is a matter that we need help and so i would just i would say to you that the city of fort worth officers acted in accordance with general orders seeking medical assistance as soon as they knew that medical assistance was needed and that they didn't send him and monitor to him as to dinner orders which say that needed to be done was here ready dad when they said in my view and i think that the record shows that officers dispute that that there are some testimony that he was moving in then it certain point the officers noted that he did not seem to be responding and that's when they said they asked for medical  attention to be to be stat mr darden had been tasered and because he had been tasered general orders does say that if a person is in a struggle in they've been tasered you can say for medical attention but they were seeking medical question earlier when you said what's the closest case clark vs massengill is a case from this court in two thousand and sixteen it involves officers who attempted to use did use an attack dog and a taser in their attempt to arrest a suspect and there were different versions from different eyewitnesses with respect to who was resisting you know what actually happened and this court concluded that because of the factual dispute regarding whether or not the suspect was compliant that genuine issues of material fact precluded summary judgment in that case there's also a discussion of whether the right to be free from improper in that case use an attack dog or a taser was a clearly established right and obviously it was because otherwise they wouldn't have remanded it to two thousand and sixteen case from this court it was s noted that there is case law out there that says that you don't have to believe what a suspect says when arresting him and that's we don't dispute that obviously anybody who's ever been handcuffed will acknowledge that it hurts so if there are certainly cases out there that say when a suspect complains that it hurts when he's being handcuffed the officer does not necessarily need to free him from the handcuffs because of the complaints of pain what they don't say however and a case i simply cannot find after a thorough and diligent search is a case that says as a matter of law and officer is free to ignore the statements about a party's health condition that they are completely irrelevant to the analysis at the very least it must create effect issues and there's simply no case out there that suggests that the officers in this case could have just ignored the people either assuming that they're lying or assuming that their own belief in that the suspect follow their instructions somehow trumps all other considerations now they suggest that he was not complying their word is not this is not the bible here these are police officers you're supposed to be acting reasonably they're being informed that somebody has asthma and this and he's having a seizure and they're ignoring it saying you're not complying with my order therefore i can do whatever it takes to make you comply really with the if they were arresting a child an elderly person could they taze an elderly person if they were simply simply not compliant or would those officers have to use their brain and make a reasonable guess as to what the likely consequences of their behavior would be now we're not saying that you determine as a matter of law that i my client prevails we're saying that you can submit questions of reasonableness to a jury because that's the role of the jury in the american judicial system but it in a reasonable situation writable police officer i mean you have information that there is a house where drugs are being sold you know the drug dealers have been known to have weapons you're going into a house you don't know who's there or what their what's going on you want to get control of the situation as soon as possible and people are yelling and there's all sorts of things going on wouldn't it be reasonable to take just comply and then we'll see just simply comply and and handle that that way do you think that was unreasonable on the part of the police to to ignore those you can't breathe and wanted to get control of the situation as soon as possible for their own safety and safety of others yes for two reasons one this got more goes to our claims against the city which i'll address in a moment the officer should have been provided with briefing she that's stated in the record that it would have identified who the likely occupants of the house were going to be their physical description whether there was any evidence of weapons in the house before they provided with none of this the city had provided them with this information they would have known that for example and is there any proof that the city had this information you're on that it is information the record that at least for undercover buys were staged at this house and undercover by doesn't mean that the city's got the information you've described you're exactly right and if you look at the testimony from our expert in our summary judgment response they say that before you do a dynamic forced entry into someone's home you need to have this information both for the safety of the officers themselves as well as for the safety of the occupants who are pregnant women and children in this home and they did a dynamic entry because somebody bought twenty very least there's a reasonable question as to whether it was excessive and at the end of the day you know this it well the autopsy just shows a mild abrasion and you know this witness who is lying down couldn't possibly have seen the fact that's a fact that's what juries are for if they want to believe the medical examiner over you know mr crippen that's what they're that's what their job is but that's certainly not the district court's job and the fact is that we had we had at testimony from eyewitnesses who say that he was punched in the mouth and kicked in the face and the that this somehow as a matter of law that is routine chrissy's procedure and that's what the district court said that it was and we respectfully disagree and an affirmative discourse decision would suggest that it is he was kicked in the face he was already on the ground  yes well i mean again there is a large gap in the video we don't know exactly what happened but i think that's the most likely solution but again that's something that a jury or a juror should be able to to determine how did this injury happen you know if he was already on the ground he's being kicked in the face but what was the necessity to tase him and that's that is that is the the crux of the case here is we don't know whether he was resisting arrest or whether he was simply having an asthmatic seizure and performing the typical bodily functions that happen when one undergoes that and again this simply no way to decide this case is a matter of law as a result of that giant gap in the video and for the district court to conclude that somehow as a matter of law he must have been resisting because the officers did so that's believing their testimony over ours and the standard of review requires evidence in the record to support what a reasonable absolute have done we have an expert who has said i have this amount of police procedure experience this is what we're trained to do this is what these officers should have been trained to do you know and no reasonable officer under these circumstances would have done that and that's something an expert is qualified to opine about you certainly can't say as a matter of law this was excessive force but you can certainly say a reasonable officer in this situation would have done x and in our case it was something other than what they did and that's again that's effective if they want to prop up their own experts and say no this was exactly what should have been done fine well prop up our own and the jury will decide which one they believe more but at the end of the day this is not a summary judgment case this is a case for a jury to decide thank you thank you thank you  all and the court will take a short recess before we get to