the court counsel my name is vicki roby and i am appearing on behalf of the opponent officers issue in this case is whether andrew layton had a constitutional right to be repositioned after being restrained well he continued to resist an unpredictable and constitutional violation the officers are entitled to qualified immunity well plaintiff has not contested use of force prior to the application of the like restraints that doesn't allow plaintiff to mentor divorces earlier conduct  officers and two civilians worked together to apply the restraints gradually and in proportion to the degree of resistance exhibited various control techniques from verbal commands to a like a street leg sweep pressure point five eight separate occasions that he resisted fought struggled after he was placed and like restraints the resistance was thrashing side to side elevating his chest off the ground kicking and spitting in the view manager indicated the high before you were only had enough with to pass a single shopping cart through the officers were concerned that mr layton presented a threat to himself that if the strike is had on the adjacent because i thought there were some testimony that they did not perform assessment or that they told the police they could not perform an assessment and there's other evidence that they did i would direct your honour's to the gold  his i know about that but what about the other evidence you should you know what i'm talking about there was some testimony from one of the officers that the paramedics told him they could not do whether a more thorough assessment could have been performed or not there is as the district court found evidence almost assman it was performed the officers had a right to rely on those last minute even if it wasn't a full assessment even if it wasn't the same type of assessment a physician would conduct of an e r they had a right to rely on those reasonably trained paramedics that had additional of their testimony that the paramedics reported the results of an assessment to the police there is not testimony that they reported the results this last month but both paramedic throughout reliance are you referring to that the officers at least some of them there are six officers there observed monitored while he's being transported to the jail in the ambulance for example officer asked the paramedic how he was doing in the paramedic reporting that he had a pulse that he had respirations that he was  i would direct your honor's attention to the paramedics testimony regarding the assessment they performed which is not only on their own report but is at their testimony both paramedic drew's and paramedic testimony is in the court's record and in their lengthy testimony regarding the assessment they performed they detailed the specific things they were assassinating throughout their encounter with mr layton which began at approximately five o six a pulse that they asked various measures based on the observations including noting that he was combative noting his demeanor looking at temperature there's a whole three page document that discharges their obligation under the eighth amendment to get the trained medical professionals out there trained medical professionals that he was in the hands of medical professionals and if something needed to be done presumably they would have done key facts that were found by the district court and they informed the qualified immunity analysis that the only reason why he wasn't placed in the recovery position and it's basically and you know being transported the i think he was transported on the stomach is the reason why is because he resisted that position and wanted to be placed on his stomach or that was the only place he was resisting i'm as would be clear about the record here i would direct your attention to the pundits pages two eighty four three ten three fourteen and all of those locations the paramedics the resistance is the key issue here because this court is well aware under the supreme court guidance plaintiff cannot defeat qualified immunity by citing to generally a stablish principles rather they must  and unpredictable resistance maintained a threat to himself i would direct this court's attention to the recent ryan versus armstrong decision and which an inmate was shackled and the ankles and a considerable amount of body weight was placed on that inmates back and his hands and ankles were fettered together the court looked at that use of force which only ceased when he went into respiratory arrest and found that the officers use of force his hands and feet feder together and was exhibiting what the court characterizes on and off again resistance that resistance was still enough to support the constitutionality of maintaining that suspect in a prone position that dealt with suspects that were not resisting arrest or calm were unconscious those cases are inherently incapable of providing officers who are confronted with an individual who continues to resist arrest that they cannot maintain him in a prone position when they reasonably conclude that it isn't his best interests and safety doesn't strike has had an adjacent wall and later when he refuses to be positioned on his side it is the honour's to the hive employee you testimony peter johnston described mr layton as he was never still at any point joan devens said he was still moving around he was growling the noise wasn't quite as loud on the paramedics were there but the unrefuted record from both the hi v and officers is that he continues to resist in fact when the paramedics arrived that's what i wanted to ask about is it your view that the resistance was continuing or was it was it i was intermittent and if it was intermittent there's that does that make a difference here with respect to the actions and the positioning of the person whether it's intermittent continual and does not change this court's analysis interment resistance is still highly unpredictable and presents a serious threat to the officers i would direct the court's attention to all high view witness testimony regarding the resistance effort to breed this court has dealt with that issue particularly in your honour's decision and carpenter brigade here the officers viewing the movements viewed them reasonably as resistance as did the high the witnesses that were viewing that same conduct even if mr lane's motives were innocent it was reasonable for the officers to view his conduct as continued resistance thank you your honor all right you may reserve the balance for a battle respectfully requests this in a walk a tree appeal be dismissed for a lack of jurisdiction the arguments that you've heard today are not from they've heard from appellant are not the version of the facts as a district court found genuine issues material fact in favor by handcuffs and the hobble he only sporadically resisted the restraints he was forced to remain on his stomach well i think she argued the point based on sporadic resistance she said this morning i just heard her say  sporadic resistance she cited the pratt case and so forth and said even if it's intermittent or sporadic it can still be a threat to the officers and justify what they did so i'm not i don't see the jurisdictional problem if they're taking sure and up until this point in time i think it was a little bit less explicit so i will and then the disregard goes on to say though a jury could reasonably find that lane could safely be moved off his stomach while awaiting the ambulance so the disher car reviewing the evidence looking at the evidence that there is evidence to find that this sporadic resistance as as is described doesn't create a threat to the officers are them then we would move on to a qualified immunity now to senator i would completely agree with that it's just when they present this evidence that he was continuing to resist let's actually talk about what this resistance was well it's a little unclear even what you say with the discour presume there were no findings here because your summary judgment motion but there's a lot recitation it pages one detail do you think those are facts on which the district court relied or do you look only to the discussion of the legal issues later for the facts that you think we should i think the i think that the answer to the question is that those are certainly facts of the dish court found in the record but when reviewing the but then if you go on to page twenty one the district court's finding issues of material fact for one the and then the district or and this paragraph by saying the court find there's a genuine issue of material fact as to whether the officers used excessive force by keeping him in a prone position for an extended period time after he was placed in restraints and what the answer go that's a legal conclusion that comes after the observation that he could be moved aside the officers knew that it was reasonable to keep him in a or that they should move him into a recovery position and in thompson v murray from this court the what this court looks at is whether or not the summary judgment record length at the contradicts the version of the facts t assume to determine there are genuine issues of material fact so as not you know did the district court make sure they cited every fact and what i think the district court maybe is being referenced here is some of the reasonable inferences that the district court was making might not have been fully drawn out at four fifty four am we have him hogtied we're going to get the energy out of them first then we're taking him to jail as his quote and at that point in time he's got his hog tied shortly there after he's wearing a spit hood and for at least eleven minutes because that's when the ambulance arrives somewhere between eleven and eighteen minutes of the time the engines is there he's kept thrown on the floor hog tied spit hooded and they're characterizing thi s as the kind of resistance that requires the further application of force and i think what the district courts finding is when you have someone in this vulnerable position hogtied spit on the floor and you have officers holding him down so he can't move at all that at that point in time he's restraint that there's no there's no further need to control him that he is controlled when he is in that position counsel let me ask you opposing counsel the plaintiffs ended up being real belligerent eventually it ended up in a hobble tie situation the officer then placed the the eventual plaintiff into the backseat of the police car face down when they got to the police station the pla was foaming at the mouth and grinding your teeth it had some sort of seizure that case to me we said not a lot of analysis but judge mcgill in that opinion said you know what that was reasonable under the circumstances now i may disagree with that but that is pretty darn close i mean it is really really close and you had resistance you had pushing and it sadder and sadder and you really with the habal tie this particular plane of couldn't do much why does in this case just fall away on clearly established because of mayor and that is this english on this principle when he's mayor put in the back of the squad car there's not this continual pressure if you look at the expert report that we have from dr biden part of the issue with being placed in the hollow restraint is then the downward pressure or the restraint holding you down which is which is present when you have these officers now in their testimony they kind of say oh we're just kind of holding him to the ground if you look at the police reports that talk about putting pressure to hold him on the ground and so i think that's the distinguishing force is the fact that they're actually putting pressure then when you put their hands with their hands and that one is on the gurney they're continuing to pressure by strapping him down it's a different kind of person is there's no billy move when he's hobbled in the back of our car there's an ability to use a movement to attempt to free the diaphragm to rise you might be right about that but then it says in that opinion it says a hop and rope placed around the lakes the titans when the detainees struggles which i assume means if you're if you're face down that it's going to pull it's going to pull pull you bore onto your stomach put more pressure on you sure and that and in this case though the pressure is being further amplified by the pressure being applied on there sad enough is that mere fact the you're placing the hands on the back of the plaintiff here you know is that enough that  to say that it's clearly established you can't do that in light of bayard that's pretty close and that's a fine distinction you're making there's a distinction though i think to also be made between that's kind of in mayor q the first circuit they find a robust consensus that deals with the specific issue of actually putting the pressure and i don't mean to belabor this but the question is is under that second prong of qualified immunity the question is what are reasonable officer you know know what the law is and it's a pretty fine distinction for the officer to know you can't have a tie in the circuit you can't play somebody's face down when there's some resistance but you can't put pressure on them that's a very i mean i think you might be right as a matter of medical science but that's a pretty fine distinction for an officer in now and i think one of the things that we should look at is when we're actually looking at the does this course decisions using the  case that you said we dealt with them in our brief as well as all of those cases the application of the hubble and the arrest the losing consciousness they collapse they collapse in time so they set and so they're they're restrained put in that position and now they're moved into a safer position the recovery position or off their back and it just and they say well they were moved until they lost consciousness well those it happens in those cases that that collapsed here we have at least eleven minutes of holding with the pressure on the back we have eleven minutes of officers putting downward pressure on him to keep him from moving then we have him being moved to the stretcher which they were able to do in the ambulance came so this idea that there was no ability to move him or change him i think is a reasonable jury could look and say well they were able to move him on the ambulance came i think a reasonable jury could say there were six of them and then they went down to two of them  for millions of bow i thought there was evidence that the officers of the paramedics tried to adjust his position and he resisted even their when they were when they were putting him on the and there is no evidence that they attempted to lay him on his back or place him in that way but there's evidence about a pill using a pillow to turn his head to turn its head but that doesn't change the there is no evidence that they attempted to not put him with the chest down the actual pressure body continuing to struggle on the cot for the that was one of the that was the version from baker and that was the version from the run report i think that there's a inference to be made from the evidence that they were able to position and they had if you look at the actual structure itself which we have a picture of an exemplar to hold him flat on that on the side it would be a weird thing to hold flat on the side w strapping as arms onto the stretcher which they were restrained leads me to my follow up and i'm not sure i understood your answer to judge collins question earlier about this recitation  in the in the opinion of the district court under section one it's in title factual background and it runs from page to to page eleven and it's several pages a chronology of events and i just read two or three parts of that is that and i didn't understand your answer is this what we're to go to to find the facts in this case as viewed in the light most favorable to the plaintiffs and as as as therefore found by the disk recorder of these the pages were to look at them and my answer would be no and here is why these are the of the district court found but then additional kirkos on the pages twenty twenty seven twenty eight and highlight what those genuine issues of material fact are and so when the district court says what the genuine issues of material fact are the circuit precedent is and you look to see whether or not those genuine issues of material fact are clearly contradicted by the record so what i would also say is that our brief would show us also on the record as well with that is we have several pages of data these facts chronological order as i understand the court is supposed to do the district court is supposed to make these findings of fact so that we can then rule on the legal question and might not make factual determination so isn't that part of the opinion really the part that we should be looking at instead of a portion of the opinion of the opinion that talks about disputes of fact i'm for the district court decide their disputes a fact that doesn't really help us much does it i would agree that it would be more helpful if there was a  supposed to do when you read that is you then go to page twenty you see that the court has found a genuine issue of material fact on why on whether he could be safely moved or on whether they used excessive force and whether they use excessive forc we would argue is that with additional corresponding is a jury could say when you're hog tied and you have a spit on you've been subdued and controlled and now is the time to stop applying the force on him well the judge didn't even refer to the force on his back on page twenty the judge just said they used excessive force break or there was an issue of fact as to whether they used excessive force by keeping him in a prone position and how they were keeping him in the prohibition was by the downward pressure on his back where does he say that they were applying downward pressure on his back that's undisputed s shoulder blades i believe those are the testimony and then there's also testimony record from hill after hit almost saying he was holding him on his back but you cite two in our brief i don't know that he also highlights and his findings of facts but again the question is under the a certain precedent is whether or not the summary judgment record blatantly contradicts the version of facts a district court likely assumed to determine there are genuine issues of material that record and the alleged fact disputes that counsel pointed to are simply legal conclusions it's also undisputed that the only time any pressure was used was a hand on the shoulder when layton was actively is actually addressed in the courts factual findings and pages one through nine i believe that discussed at page i believe it but the court that we can look to in this case or spaded pages one through nine yes i would and under those facts the officers are entitled to qualified immunity based on mr layton's continued resistance which created a threat both to him but created a threat to himself i'd like to there's a lot of discussion about whether the officers could have should have attempted something else courts addressed that issue directly versus long and said the key inquiry isn't whether there's a less intrusive alternative but whether the officer's actions fall within a range of reasonableness here onder the mayor decision as well as the ryan decision which dealt with the use of a considerable amount of body weight in addition to the ankle shackles and wrist restraints that it was not clearly established the officers maintaining mr layton in a prone  violated his constitutional rights for that reason we would ask of the district court's decision be reversed and that this court grant the officers qualified immunity thank you all right thank you both for your arguments the case