very kempson i represent cody jensen the defendant appellant in this case who the south dakota state highway patrol trooper the case that brings us here commenced in the late evening hours april fourteenth two thousand fifteen on a rural road in clay county south dakota trooper jansen observed a car driving erratically at night pulled over that car was driven by one troy q sect who feel field sobriety  tests at the scene and trooper james and then placed him under arrest for driving while intoxicated and transported him to the law enforcement center in vermillion south dakota that's the county seat and it's colocated with the city of a million police department and he pulled into an area known as the sally port and the court knows what that is and took mr jansen out of the vehicle and in the sally port when they arrived was said well i want to go to the hospital and have the blood drawn and i don't want her miss most of all who was visibly eight months pregnant standing in the sally port i don't want her to do it so i'm withdrawing m was actively resisting at that time and so he performed maneuver took him to the ground resulting in injuries but then did handcuff mr q sick and i think the district court made a couple of errors here first of all the district court kind of tried to analyze this in a frame by frame analysis i realized technically when you're dealing with digitized video frame by frame is kind of an arcade phrase but fail to consider the totality of circumstances as we are instructed by the supreme court and earlier decisions of this case they try to analyze well can you see a move to you see a move or not and that ignores the totality of the circumstances the second failure i think  movement was very small as as could be perceived perhaps by viewing the video i don't disagree with that but the standard is what was the reasonable perception of the officer was it reasonable for him to believe move however slight was resistance and it was just to take him to the floor he wasn't trying to injure and you just want to get him to the floor that's primarily what law enforcement officers try to do you get somebody on the ground so you can control them better force  somehow that's indicative of unconstitutionality this court as far back as coal versus bone and i can't remember the data that decision right now but i think it was at least in the one nine hundred ninety s so that internal department standards are not relevant for constitutional analysis acting erratically carrying a knife they respond to the call and there's a lady standing in the driveway but it's not the suspect ms hughes then comes out of the misuse of the lady standing in the driveway the other lady with a knife comes out she's not brandishing a knife and she's not threatening the lady or the officers but she is resisting commands knowing commands to drop the knife so it's a totally different case i mean just think about this this guy is arrested in taken into custody he's put into the black the back of a police car in i don't know of any place in the world where people are not at least patted down and so we know there are no weapons involved we know he's on arby's in the back of the police car now he's transported to the sally ports and but you know you've got is a person who's you know much later much smaller and is intoxicated and you've got a much larger officer you know he's not armed and that doesn't seem at all like so many brandishing a knife or holding a knife no but i think i think the similarity is this that the woman in the casella case says she did not feel threatened at all and was not being obviously threat but nonetheless an officer drew his revolver and shot her four times and the u s supreme court found that that was qualified immunity that his concern the officers perception that he was concerned for the safety of a woman in the proximity was sufficient for qualified immunity and that is why i think it's a pleasurable here in that the video is already starting to back away she looks quite surprised at what's going on but she's moving away and officers got physical contact with the the defendant he has physical contact but he has to leave the room to do the warrant application and so he wants it cuffed because the guy is not big but this woman is eight months pregnant and she's backing away and like to sell the supreme court decided even though the lady in proximity to the knife holding woman says she herself didn't feel threatened the supreme court said the officers perception that she might be in danger was sufficient for qualified immunity has to be reasonable i think it does and i think it's reasonable for an officer was a good ten feet away yeah but in if you have somebody unrestrained left alone and a pregnant woman is and his perception was that he was resisting and to overcome that resistance to cuff him and thus effect the protection of the danger or potential danger that he perceived you don't sense molex worse alone up every one of the supreme court cases has changed the standard from a reasonable officer to every officer sela they said that it must be as clearly established that every officer would realize his action was unlawful and  two thousand and fifteen case that it clearly established right is one that is sufficiently clear that every my emphasis reasonable fisher would have understood that what he is doing violates that right and you have to say every single officer when he feels some resisting would know that essentially no other officer would have taken this action and i think i think that's contrary i think what the supreme court is telling us it's a very high bar and i think the officer you know the disparity in size you can't really control out you don't get to choose who you arrest nor by whom you're arrested and you know you use sufficient force to effect the object which in this case was to cuff him so so i just don't think you can say that every officer would have seen that this was unreasonable in the light of the existing law of x tells us that there was a fifteen case and there are others earlier so i'll say my time for rebuttal unless the court form morning or honors jeffery storms for the plaintiff i will start by saying i was actually reading the acres bach case early this morning for the proposition that a now seeing plaintiffs citing brown and citing shannon in some cases with a lack of success and i think what we're seeing is we're seeing defendants trying to push the balance of some of these decisions because the proposition to your point earlier your honor that force is least justified against nonviolent misdemeanor who are not fleeing who are not actively resist saying and are not posing a threat officers has not been critiqued by the supreme if you start there i mean he sufficiently resistent that force and problem not just de minimus force can be used to control him so that he can because now why do we draw the line that's important for takedown cases because takedowns can occur in a variety of different manners some of which are impermissible and the south dakota just record by no means said there was a violation of policy therefore there was an unconstitutional act that's certainly not the case but it doesn't form a c of the what the cold case says is that just because you violate policy doesn't necessarily mean you violated the constitution and so here we're looking at an impermissible act where the graham factors do weigh in favor of de minimis force more than the minimum force which was obviously used here as reflected in the video result in  substantial injury and our case law under brown shannon copeland montoya and small all tell us that this is the type of situation where qualified immunity is not warrant it's very different than cases like majority in that opinion what you can only understand from it is that there is a higher level of threat and in this case there is no threat that is significant and objectively reasonable client was just because you can gauge in some passive resistance doesn't create sort of this talisman that allows all for us and so although my client and we admit engaged in a certain level of passive resistance and that does not by any means entitle the officer qualified immunity under the for still needs to be reasonable and as the video shows objective only if there is any physical resistance at all it's so minimal that it's not even noticeable on the video the video could easily be interpreted by a jury as a lack of physical resistance  sec and the court credited mr through six testimony that there was no specific warning before the slab and that was a decision that the court made in accordance with the summary judgment standard what's also important to is that you know as i as i walk through the timeline you know of the video mr danson puts rick rick you sick in the double chicken wing at twelve fifty five and he's still with him in that position from twelve fifty five zero zero to twelve fifty five thirty seven so for thirty seven seconds there are still and what's interesting about that is there is a gap in the video from twelve fifty five seventeen to twelve fifty five thirty six so in one thousand second gap and how that's been described by affidavit by mr johnson's departments is that the video stops moving for an activity so we know he's engaging in no active or resistance at that point that's being captured by video then mr jansen puts mr recruit up against the wall and directs his forehead against the wall and officer janson admits that he had complete control over mr cusick the entire time that his head was against the wall and as the dish recorder noted when mr jansen commenced the slam mr hugh six hundred was still against the wall so he had this individual in complete control he wasn't a threat and he uses its extreme amount of force in terms of a constitutional sense where they walk through how one reasonable his conduct was he wasn't posing a threat he was much larger he use a gift can force a slam into the ground he used it in permissible technique so certainly that should be relevant to the consideration and only because of that reasoning with respect to the henri's onus of it do i think it's really useful in the courts analysis at that point appear to be a slight pushback right before the  takedown doesn't well so and i'm a former wrestler so my how i view the mechanics may be a little different but if i can step off from the podium as i saw it i saw mister officer janson kind that's exactly what he did and to do so in these circumstances was entirely unreasonable and we believe that it's well controlled under a number of the clearly established presidents that we cited earlier and for that reason we ask that the court affirm thank you well here we go again gives somebody is perception of that video that says i don't think it shows this or i think it shows that the standard is would every officer have been mistaken in believing that there was resistance every concern for a pregnant woman in the room taking this guy to the ground a couple of after he had refused to stand up from the bench and so forth you know mr storm talks about defendants using brown and  other cases to try to quote push the biomes the supreme court of the united states is pushing the bottles i believe judge locum earlier referred to it as a scolding but we've got the casella case which i've heard d c versus west b which was decided in january of this year and that's famously called the peaches case and that had to do with whether or not somebody was authorized to use a house for partying and other things of that nature in two thousand and fifteen ix and mowen x said specifically reasonable us of force is a pure question of law not a factual issue and that was the first case i believe where they went from a reasonable officer to every officer realizing that the conduct was illegal and there must be a precedent so clearly defied that every officer would know that we don't see that kind of precedent in this case where somebody is resisting being handcuffed or at least the officer reasonably believes that resistance is occurring and the guy is injured in a subsequent take out i haven't seen in the district court's opinion nor in mr q six brief any case that shows that clear precision that the supreme court since two thousand and fifteen at least and maybe even earlier has has required the standard is would every officer have known that reacting to  perceived resistance to being cuffed and believing that there's a potential danger to a nearby pregnant woman be excessive in the take down the supreme court of the united states i think says you have to have almost that precision continually say we don't require a case exactly on point but in fact they seem to but the district court opinion and and the opposing brief don't have any cases that are even i think you know close to