we do have five cases on our calendar this morning and we'll start with your first versus reid's case number seventeen for one six nine and we'll start with m please the court paul mortenson representing the appellant stacey shivers i'm sort of planning on using ten minutes reserving five minutes we'll see if that happens and to me i assume that the court is well familiar with the facts in this case yes tess presented this case asked if because shots were fired at law enforcement officers this court will for sake it's carefully formulate the defendants here in n the lower court have taken the position that because of that situation this court can look aside from the clear tested been applied in all of these areas of the law and we police car hold of the police station interrogated like a criminal even though she was not one then dumped out afterwards with no help of any kind you didn't ask because if we're familiar with the facts and the way you outlined your argument it was sure helped me a great deal if you would go to your best what you think is your best argument your best second best argument and bring me down there we read the facts we understand we got for five big areas your honor and i don't want to imply that by not doing it all of them that i don't stand by all of them i'm not going to be able to cover them all but i do the best you can p regarding whether or not voluntary consent was given i really love the quote from the cow case with my client being held in a police car after having ity of resisting arrest or assaulting a police officer again my client at the time that she spoke with her representative carpenter of the county attorney's office release the handcuffs she had already in the exchange on the audio on the video says i don't understand why you did all of that in effect what it says well at the time we didn't know any of that and so it's a time that the false arrest has its inception all of the preceding events had already it already expired and he had already explained to her why all of that had taken place  taking into account all of the circumstances surrounding the account or you have to take into account what my client had gone through getting to that point because it's from her perspective or the perspective of the objective reasonable person in her situation with the police conduct have communicated to a reasonable person that she wasn't not at liberty to ignore the police presence and to go about her business well was she at liberty to do that they don't know who she has she's in the road there's been a police shooting but you expect the police to do i guess is my question at each step of the way what did the police do wrong what the police very much did wrong is they never said to her we're going to we'd like to take you to the police station and talk to are and then again it was clear she's there she's sobbing she says staring she's been in the middle of a gun battle she could be armed but she's kneeling passively showing no resistance whatsoever she's on her knees crying she doesn't know if they hold or down in the officer says you're not hearing what i'm saying indicating that he could tell there was something wrong there so there was evidence that there was a reason to understand that she was in the midst of a severe psychological injury where you're imposing upon a police officer something that you and i can't even tell if he's supposed to divine what her condition is at that time when she's supposed  that there's not a lack of cooperation the officer in this case testified that he didn't shove her down our stomachs any bent down and just took her hands and handcuffed her indicating that it wasn't necessary to do that i'm aware that the law is that you don't have to use the least amount of resistance but where it's clear that she's passively and very emotional there was no reason to take that extra step and that's where the abuse comes in on that claim and then taking forward though from her have you been subjected to that and brought forward into the car were nothing's been explained to her other than oh we're going to take you down to the police station ok with these confusing statements which are obviously meant to intimidate her because we're taking you ok she's already been treated like a criminal she's supposed to so you know it's not ok and risk getting them upset or they used there's a lot of material there in which recovery but if i can go back to the first part of what you're talking about and that is on the excessive force claim under cortez you have to show that there is an actual injury from the actual use of force that is more than the minimum and so i think you've acknowledged that there was no physical injury that you're relying solely on that more than what the court allows to be diminishment all right so you're relying solely on the emotional injury right now on page one hundred thirty three of the deposition of your client she is specifically asked what caused the p t s d and the answer is well i'm sure that big in the house and seeing the shooting was part of it follow up well and i assume that the suicide injury to the fact that a detective whitehead had applied handcuffs to her and physically touched her when he put on the handcuffs in a prone position and or put it has his foot on her back is there any attempts testimony with regard to attributing the emotional injury to that application of force i don't remember that being the you remember what in the i don't remember her testifying the way you're asking me finish produce that for you i don't think i can she but but the tape reveals a woman in agony screaming i didn't do anything wrong i didn't do anything wrong when she was treated it's the law that a preexisting injury that you're responsible for what happened and that and less something comes along that is completely beyond the pale and somehow breaks the chain you know that the fact that there are later circumstances that also contributed doesn't relieve that person for what what they did i mean it's standard restatement tort law and things like that so so is there or is there a to get wouldn't attributing the emotional this my time in my already down to four minutes and fifty one seconds i need to reserve time for rebuttal i believe well you may reserve time pre buttal but i have one question i need to fast forward on if you would you please tell me what you believe the exigent circumstance condition what was it the actual commotion and the shots being fired in inside the home are you arguing that the exigent circumstances didn't happen until they shot the gas canister canisters into the house you know my client's argument is that there were no exigent circumstances until the police created so you're arguing that the police created that by shooting the canister  no and again it was the other people who were taking the deposition they didn't ask her about it she didn't answer that question ok thank you very much well i represent the ogden city the defendants in this case i'm here with josh davidson who will be making arguments on behalf of the state and the trooper whitehead and i will is a qualified immunity case your honour's in the district court correctly ruled that the police officers of all the defendants in this case were qualified lee immune from the the allegations rather the cause of action alleged these police officers in this case and as we know under qualified immunity defendant must be shown the defendant violate a constitutional right the constitutional right was clearly established at that time importantly qualified qualified immunity protected as we know all but the plainly incompetent and those who knowingly violate the law and now in this case the plaintiff has failed to identify and the record does not support that there has been any incompetence on the basis of these officers or that they knowingly violated any right and the district court started with the second prong and i think appropriately so  identifying whether or not as any clearly established law at the time this took place almost six years ago in november two thousand and twelve and the district court judge couldn't find any because we believe correctly there was none it's important i think to this case that the clear that it's understood that the current clearly established law must put the situation beyond bait it must be that clear and we recognize that it does not have to be a case that's directly on point but it must be so clear as to put these officers on on clear notice that the circumstances under which they are operating that and the actions that they are taking violate this person's constitutional rights of those cases that do not exist in this matter the officers i must respectfully submit your honor the officers in this case did everything that one would hope of police officers and law enforcement as such to penalize these officers under these circumstances would require clear precedent that what they did was unconstitutional in this case in this case is we know the plaintiff was in the patrol car and mr davidson will address the excessive force claim as far as being chaddock night on that and your hours are very familiar with with what what happened and what preceded all of this that the officers took quick action to try to identify everybody at the scene find out their involvement and i think actually very impressively so under those circumstances asking questions taking out information and once they find out who's who and who's involved taking appropriate action they remove the handcuffs and at that point things change drastically at that point we have officers in every interaction with the plaintiff in effort to comfort her to provide her as much information as possible in fact even go on a scouting expedition for her dogs to try to find them for her and deliver them to her they then as detective carpenter from the county detective carpenter then goes goes through a very i believe important impress effort to inform the plaintiff what's going on what's going to happen why it's going to happen and in fact even six or consent now the district court stated that her response to that arguably could be inaudible but the district court herself indicated that it seemed to her that the plaintiff actually consented and said ok but in any event these efforts to  inform the plaintiff and to them transport her to the police station where again she is notified that she doesn't have to be there she can leave there informing her of what's happening she's not handcuffed at that  believe are what we do expect of law enforcement and i think i would counsel i hate to interrupt you but yes i think our job is and i try not to ask a question unless i need some help in understanding what's going on and one of the places i need to help because you're reciting things you're obregon all through that what i'm concerned about is and i'm not really concerned about i just need to know about the warrant how much why was there not a telephone seeking a warrant with all the stuff that's one of the issues that and that's one of the things that just happened to catch my attention really in this argument so why did they not that i think is crucial because this time when from the beginning of the the episode from the event when we have a person taking shooting at officers that starts a very important machine in process and from that from there we then have someone who will not obey commands his attentions are very clear and it's very reasonable for the officers to assume what he wants to do and how he wants to accomplish time frame of when this started with the officers being and then when did it end i mean how much was it one hour two hours three hours that's a very good question that i don't have a specific answer to that wasn't the exigency that was not the accident see your honor but we have somebody holed up in a home who does have a firearm we don't know the officers do not know what else he might have with him in the home or who he might have with him in the home and so under that very chaotic situation they have to make the decisions fairly quickly they try to do with the best information possible they they consulted with each other on the scene and made their decisions together to then use the tear gas law that supports that the officers of the one that created the in fact like this created the exigent circumstance no not that i'm aware of and that argument has kind of been made from the beginning and has never really in m found any support either either in the facts in my view or case law given the circumstances of that night from the very beginning those are when the circumstances began and there it totality of the circumstances that must be considered and not to take d one of the arguments that mr mortenson has made in his brief is that when she said why do i need to go to the police station and particularly in light of the fact that this voluntary consent in other words the answer could have been well you don't need to go we were asking you to go but they told her why she needed to go why couldn't that be indicative of a lack of voluntary can set well i guess is it possible that that taken alone could could amount to that maybe but under the totality of everything that was going on it was explained to her earlier as well and the level of cooperation between both between all the parties including the plaintiff  and the concern about her well being and all of that was going on put together i think is what's important and i think that under those circumstances there should be clearly established case law that would alert that officer that what he did or said was unconstitutional belief that she did not access mistress lawyer that she was in too much shock or to upset to pose a threat to trooper whitehead is irrelevant the analysis on whether there's an excessive use of force is an objective lead reasonable standard from the perspective of the officer based on the totality of the circumstances and sheer officer a trooper whitehead was responding to a college shots fired off a certain urgent need of  care ten thirty three radio call he arrived within minutes of receiving that call he saw two people who he did not know their situation was their familiarity we were at a situation with an active shooter one that was willing to shoot at responding officers and sergeant reeves actually said when he got out of his car secure these people i don't know who they are so based on the totality of circumstances or there was an excessive for trooper whitehead judge back with respect to your question there is no record evidence of emotional injury that is specifically attributed to white heads initial use of force  and then turning to bollen terry consent tripper y had was an assistant officer he arrived at the scene at two thirty four he placed mr shivers in the back of this car two thirty six and he was out on the perimeter he did not return to his car until four twenty two and so he was not privy to any of the conversations that michigan's had with the officers from the various oregon city the swat team he was not privy to that he was asked to drive her to the police station as in the sistine officer he was entitled to rely on the either probable cause determination or voluntary consent determinations of the requesting officer and there was no law that required him to second guess those officers decisions with respect to your specific question about the statement why do i need to go to the police station this doesn't put put trooper whitehead on notice that are give him any reason to second guess or to be constitutionally required to second guess the requesting officers she was just asking for information her question didn't amount to a protest or revocation of prior consent and the nothing put trooper whitehead on notice that he was required to engage in second guessing those officers will and then may be pertinent to the second prong of qualified immunity but on the first prong of qualified immunity theory and you lie you have a problem because here with voluntary can see in it the prism is not from trooper whitehead's perspective but from the plaintiff's perspective whether or not she had a reasonable expectation that she was free to leave didn't protest she me to be started asking about her dogs and taking care of her dogs she volunteered even when not asked a question she overheard officers talking about cars in the driveway she immediately assumed that you know this is a city show i wasn't there for any of this i assume that reason to hold her or that she was there of her own accord and nothing that she said in the car in front your price head made a unreasonable for him to rely on the determinations made by the assistant officers any time where you're at a time not a time of just making sure you know given the sack well so you're the third lawyer so the whole thing lasted about two and a half hours thank you council will give the appellant an extra minute for your  honor i didn't get a chance in my first go round to mention this policy in the practice nurse of automatically hauling witnesses to the station and so forth i don't want it to be forgotten that we produce in a lot of evidence and that i think that we have presented a genuine issue of material fact that there was a policy there and that certain officers knowing of that policy had a duty to make sure that my client would not be taken to the  way brief explained that officer white head took position of my client not on the basis of probable cause or relying on anything he was just simply securing the scene and having placed her in his  he had a duty to make sure that her rights were violated he couldn't just take the position that somebody might have done something he was in no position to take this position would have been unlawful for cooper whitehead to have told her that you need to stand right here you hit we have an active shooter in the house you can't go into the house i want to see where you are so you stand right here i think summers versus michigan implies that the officers could require her to stay at the premises why is it a constitutionally significant distinction and if he could trooper white he could say used you stay right here versus i'm going to take you to a place where i don't have to all summers and not have done away summers was a cautious exception to done in way that you cannot without a warrant or you know you can't take position to somebody like that custody of that and  violate their rights to move around and some are said we'll let you keep people when there's a warrant to search your home we'll let you allow allow you to keep witnesses there there's been a subsequent chase with the bailey you know the rule where the person was across town they went and grabbed him you can't do that so what you've asked me i think goes in the context no you can't take her out beyond beyond the realm of where it were that was there my client at all times in the kid that she was willing to be there in that car there she wanted to help she didn't want her boyfriend to be killed that's precisely the point yes that's what the officers wanted to they wanted help from her they wanted to know the inside layout of the home she wanted to help because she didn't want her house blown to bits by the yes yes that sounds to me like she was consenting to answer their questions that would help no no she wasn't because because she was willing to help there to take care of the she was completely unwilling to be taken away to be treated like a criminal interrogated where she could not be there to help she was taken away where she was no longer there to help she couldn't help from afar by laying out where i don't know i'm talking about have to help there again it was absolutely wrong to haul her to the station interrogate her that violated dunaway and all these other cases that we've cited and and there is just not evidence there that an objective