zoom context we will approximate the normal procedure in new orleans as much as possible which means that you we when the timer is on and it becomes a yellow light you have two minutes to go and when the red light on you should conclude as quickly as possible unless you're answering questions from the court we have reviewed your briefs and record excerpts we probably have not read the entire record before we start so we do appreciate record citations i would ask you please to make sure the mute button sir on any other devices wherever you are and if anybody else's are just meeting with you we don't need phones ringing in the background i would also say just as the new orleans we do not you do not video you do not record the sessions to be they'll be available for audio download practically instantaneous and then the final thing i would say is our commendation to this setting with delayed transmission each of you can have five minutes uninterrupted at the beginning of your presentation if judge jones i appreciate the offer of five minutes but i'm happy to entertain questions at any time and hopefully next time will be in new orleans and this can be a little bit easier may it please the court my  silicon i represent the appellant tony hobbs this case presents two issues and neither is particularly complicated vs court must decide whether the one hundred and one paragraph seventeen page complaint with nearly fifty three pair with nearly fifty paragraphs devoted to apple e inform the defended of the allegations against him and nd this court is asked whether the defendant was entitle to quality qualified immunity based on the question of whether the law was clearly established the st question before the court is whether the district court properly applied precedent when it pounded appellants pleadings were deficient the court knows the standard and i don't want to belabor that but inferences to point to the defendant's liability as a policeman or a matter the court can look to paragraph six through fifty three to thirty eight through two hundred and forty four and see the nearly fifty paragraphs that are devoted to apple now here appellant has alleged a claim of deadly force that that apple e use deadly force the claim is that warren illegally used the car is any time a car used against a defendant deadly force and the answer there is of course no it must depend a little bit on the circumstances of how it's done a apart car that's opened into a defendant would presumably not be deadly force a car that's driven into one hundred miles an hour with a door that doesn't retract would of course be deadly force and then there's also a wide spectrum in between so there is no specific allegation in this in these pleadings that say the car was going twenty four miles an hour at the most of impact or one hundred and fifty four miles an hour what it said is the cars used as a deadly weapon and then when we get to summary judgment i think i think we have the are what kind of day i was i just need someone that sure does come in and i'm happy to provide those to you mr hobbs is coming up perpendicular to the flow of traffic so the pleadings don't say how busy the road was they don't say how much was on the road and the trial court judge specifically rejected the claim that it was a busy interstate highway we simply don't know how busy you know what even tho of whether that is the case as opposed to a a pleadings issue the pleadings here a legend judge coleman i'll get back to your question just a minute i'm sorry to step away from that but the  hobbs was trying to cross the freeway and i think when we look at that in the proper context in twelve b six that he was trying to get across safely that not that he was some sort of suicidal person or that he really looked like a danger to others that he was trying to get across safely now your point judge jones may be a very valid one when we come to summary judgment looking at in the context of twelve b six i'm not so sure that that sort of common knowledge about l b j gets us very far a judge comment if i may answer your question about sort of the practical matters here the client is in there mr hobbs in the home depot they think he's he's he might be stealing something like knowing that part i'm just talking about  st lane of traffic when we use the word st day of traffic i think we just mean not a volume of cars but in the lane the cars drive in so he's hit in the far right lane of traffic and warren moves toward it was and i and i can see them and that i was in error i do not think it was it was attached it was supposed to be a test it was discussed as being at that stage but when i went and looked i think mr levine is correct on that point and it is but i think you would think so judge graves the the when mr warren was in the car he was in his wife's private car he was not in a police car so it doesn't show the speed of his vehicle the we have dash no it was granted and we amended the pleadings that i understood the video had been attached to that well there are two things there judge grace and forgive me i may have misunderstood your question we had an original complaint then we had a pursed amended complaint that we had to ask permission he gave us permission to do that and then when he denied our when the judge denied our earth granted the state's twelve of the mistral beings twelve b six motion we asked for leave inside of deadly force is allowed when an officer reasonably believes that the suspect boat poses a serious physical harm to the officer or others and i don't think we get to that on this petition now this encroaches quickly on summary judgment evidence but perhaps the best way to think about this is to consider whether warren had used a gun and shot hobbs instead of using a car i think that would be a very easy case for this court and i don't think very many people would say that he was justified under these circumstances and using a gun here instead of using the massive velocity of a bullet he has the mass and velocity of a car far slower but with a much greater mass but there's no reason to believe based on the pleadings that hobbs posed a sufficient threat to have serious bodily harm to himself or others to justify the use of deadly force to judge graves where you no there's no pleading about how busy the freeway was other the and there was no pleading about the officers who were chasing mr hobbs the officers who would've potentially cross the freeway but instead the pleading trying to cross the freeway safely that he was a suicidal that he was no threat to anyone else and further and i think this goes a little bit to judge jones this point the district court specifically rejected warren's claim that six hundred and thirty five was a busy interstate highway the judge he took notice of the fact that it is a an interstate freeway let me ask you a question how did you ever ask the district court or discovery limited to the question of of fight immunity we did not know because johnnie it seems you know i personally think you're really on the edge of sufficient pleading under it simply because deadly force is a conclusion not a fact and so you could say that an officer of the rocket hobbs and whether that was deadly force or not would depend on whether it was a tiny little  a or or a or a large boulder so you know it's very possible that you were wasting the judge's time and not need a little more specific because apparently i gather from your answers you have some view about what the facts will come out to me well it's just shown some of that didn't come until very late in the game but and it certainly would have been nice to have it in there and i believed that it was but that we go here i think one of the issues here is to talk about the sabera tea at the offense and the judge in this case made a lot of focus a lot on paying attention to what the judge knew and not what he didn't know and i think what we have to understand and maybe is a little bit a little bit tricky is that it's important to recognize that warren had no idea what the underlying  swas he doesn't have a police radio he doesn't know what's happening he simply sees a man coming up he sees police behind them and he decides to intervene now there's been this argument about and everyone agrees that warren was off duty everyone also agrees that when an off duty cop a police officer at texas sees a person commit a criminal act that person becomes an on duty police officer the question then becomes and i don't think it's addressed in the briefing is what is the duty of an on duty police officer when he sees a criminal act must he act and i think we can look to fourteen point zero two of the texas code of criminal procedure which is permissive so if a police officer sees a person commit a criminal act in their presence the police officer may arrest with or without a warrant it is not a must so i think when we look at the severity of the fence of the office what we have to really recognize is that warren interjected himself into this he used deadly force and he had absolutely no idea what the options was now of course it was a suspected shoplifting that didn't even occur but that's not really the point the point is that he didn't know what the allegation was now i have had other carry on about the fact that he knew he was healing from police officers who were trying to catch him and yell and actor and just come in i do think it factors in if actors into his decision to get involved but i don't think it gets him far enough to use deadly force so he absolutely had a right to come in he had a right to decide to get involved in this he had a right to decide to help fellow officers but i don't think in the use in this absolute lack of knowledge and there's no dispute that he lacks complete knowledge about what's going on here that he then was justified in using deadly force and if we did come to that conclusion that an officer who just sort of comes onto a scene doesn't know what's going on and and just sees someone being chased could use deadly force we're really interested in to a really strange world that i think would can conflict with a load of precedent from this court and from the supreme court but very brown darden cooper and penya the court the court really focused on brown but i don't think look at the others and i think when the court looks at the other three cases they'll see that met met finish the sentence yes that the law was clearly established so we asked the court to reverse the district court's ruling and to remand to the district court thank you thank you mr levine thank you and my name is scott levine and i represent apollyon officer kyle warren i'm also happy as mr elliot was to entertain questions at any point in my argument this court should the district court's dismissal for two reasons st the district court and the magistrate judge both correctly concluded that based upon the facts the wedge there is no clearly established law nd the district court correctly concluded that the use of force as a wedge was not excessive or be actively on a reasonable as this is an appeal from a twelve b six motion to dismiss the discussion must be focused on the of this case nor was the constitutional question placed beyond debate such that any reasonable officer would know that using a door to stop a suspect attempting to run across an interstate highway violates the th amendment is finding honor as were as you are here on a motion to dismiss the plaintiff's pleadings have not addressed the matter what we know based on the pleadings is this and i was about to get to what facts were actually alleged but mr officer warren was an off duty police officer in the passenger car in the passenger seat of his wife's car when they saw mr hobbs now these are what the allegations actually say in the st amended completing the five defendant warren instructed his wife to drive towards mr hobbs now i think in context what we need to understand is in the initial complaint what the plaintiff alleged was that mr hobbs was standing on th shoulder of the freeway and that mr officer warren directed his wife to drive over to the for the stroller and then that's when he was struck as he was standing waiting for as mr hobbs attempted to cross interstate thirty five dollars defendant warren instructed his then wife to drive towards mr hobbs now two to the questions that were posed to mr ed and that's a great question what was alleged is upon being struck by the weight and momentum of the car door mr hobbs was thrown down onto the pavement the preceeding paragraph and this all is on toupet page two hundred and thirty nine of the record says as she approached mr hobbs defendant worn open the passenger door of the moving vehicle and used it as a weapon to strike mr hobbs so here's what we know we know that they have alleged that the car was moving although we don't know whether that means it was rolling to a stop we don't know what that means but we do know that what he was struck with was not the weight and momentum of the car it was the weight and the momentum of the car door and so when when mr aylett says that there's pleadings alleged that they were in the st plane or they were pleadings alleged and how he was running nothing is alleged in that regard what is alleged is what i just read to you and i think that going back to judge jones point ashcroft  court to infer more than a mere possibility of misconduct where a complaint pleads facts that are merely consistent with the defendant's liability stop short of the wine between possibility and plausibility of entitlement to relief and so here as mr millet your sad and as they've said in their briefing if the car was rolling through a stop and he opened the door well that's not deadly force and so when the facts allow are consistent with non liability and i would contend that there is were here on a motion to dismiss after the plaintiffs were granted leave to a man if they wanted to specifically a wedge but the car was moving at a deadly speed they could have done that they did not do that they allege that he was hit with the momentum and weight of the car door and so that is what fractured ribs now all that is is not a tap on the wrist or it's not a slab so it is possible to infer from the nature of the injuries suffered your honor it's not aware of whether the injuries were caused by the door or him falling to the concrete but in either event in either event what i think we need to keep in mind in this context is that the actions that how dangerous the situation actually was in the moment then that might turn on fast but what we're what we're here to consider is what it would be reasonable to believe from the perspective of officer warne and  in the context of which this interaction occurred we must recall that what they played is that he was running from mosquito officers and crossing the freeway there's no obviously as the facts are alleged this was a very rapidly evolving situation and what mr what officer warren had to do was to accept the car to apprehend mr hobbs there's no reason to believe that the law would require that he turn around and examine how many cars were on the freeway and what actual risk may transpire because he made a bit you're saying he made a determination that he was saving law and  harris said we don't need to follow the chase to its ultimate conclusion to know whether naafa servers believed was reasonable at the time and so we've got and the court took judicial notice we've got a ten lane freeway which which mr hobbs was running across and which the mosquito police were pursuing him across and so that carries with it in an instant in an instant they they have not specifically appealed in this case the fact that the district court said that they didn't get a nd chance to amend their pleadings so it's not that is not before the core the the the more compelling reason perhaps judge  that if we look and this is where i was going and wish to discuss if we look at the clearly established law prong of this there is not a case based site of four cases three of which are nature went to great lengths if i might to discuss the importance of the clearly established prong and so if if if we're asking well why shouldn't they be able to conduct discovery the answer the question is based on any version of the facts that they've pled there is no clearly established law that would give officer warren notice in the instant that he could not open his door to block mr hobbs from crossing in interstate highway of ten lanes and what i would like to do your honor if i may is to discuss  their qualified immunity point in that context with respect to qualified immunity there are four cases which are a lot relied upon by the plan and those cases are as follows brown v long beach police department one o five a federal panix five hundred and forty eight dollars the brown opinion was unpublished and because it was on published cannot constitute the earlier stablished law setting aside the fact that it was on publish this security card and brown tackled a high school teenage girl for simple truancy even though she posed no threat to anyone that is not the case here as number one officer warren clearly observed mr hobbs violated two laws of baiting a rast and obstructing a highway crossing a highway inherently inherently carries with it a high level of danger and mr warren off duty in the passenger's seat of his wife's car was on the highway traveling brown does not get them their next is darn darn occurred after the events in question it was decided in two thousand and eighteen and so opinions which come after the events in question also cannot establish clearly established law in darden the court reversed a summary judgment because the plan of put forward evidence that he was repeatedly beaten and tasered and in a residence and ultimately died in handcuffs when he was not suspected of committing a violent fancy did not threaten anyone was not resisting arrest or  back ace also cannot possibly carry the burden here next is pena vs city of rio grande decided in two thousand and twenty again after the fact in pena a teenage girl had committed no crime was not a threat and was not actively resisting when she was tase and so pena can't possibly get them there either the last case that they cite you is cooper b brown and cooper v brown in b brown which is an opinion that was published and in two thousand and sixteen the officer in brown allowed a dog to physically gauge meaning by a dui suspect even after the suspect was in restraints the officers own expert in that case testified that there was no evidence that would have led a reasonable officer to believe that the suspect was a threat and this is the important point here in brown it says the court said to be clear we do not say that any application of force to a complaint arrestee is per se on reasonable and we do not opine on the line of reasonable mess instead the court stated we stayed with the obvious under the facts of this record permitting a dog to continue biting a compliant and non threatening arrestee is objective we unreasonable obviously on its own terms trooper b brown also does not provide for clearly established law which means of the four cases which appellant relies on to say that the law as been clearly established none come close the last thing that the palin wishes you to do is say well this is one of those cases that needs no precedent it follows simply from graham but if we look at the case as it sits here today well two things one in morro the nature of this court specifically recognized that taking that path relying on the concept that just simply excessive force in the general high level senses enough is error and that path should not be followed setting that aside in the instant case as they have alleged hobbs had committed a crime which location of the events that it's a ten lane freeway and that this occurred on a business day during business hours and that traffic would be generally speaking unpredictable in that regard that officer one had no way of knowing whether there would be one car seven cars twelve cars and what speed they would be travelling at the time he made he made the arrest and so in this instance with the gra factors that exist number one we know that hobbs was observed committing a serious offense that there were people in danger whether that be mr hobbs for running around on an interstate highway other motorists who might come upon mr hobbs or the police officers that were in pursuit that's the nd element of bran and rd is uncontested he was running from the police and so far from a clear case the allegations that in the pleadings that the court must view here in the context of a motion to dismiss and that the magistrate judge and the dish report relied on demonstrate that each of the three factors in graham was met here which means it can't possibly be one of those clear cases that needs no case law and so as we sit here today what plaintiff would would like you to believe is that if they got another chance at this they would do better in their pleadings but the district court specifically found for a reason set forth in his opinion that they had pled the best case they possibly could and it wasn't enough and therefore the district court correctly granted the motion to dismiss discussion again about the car moving and i think we can look to pay our way to forty and specifically to paragraphs twenty seven through twenty nine where there pleadings that allege what was said at the scene so the officers that came up on the scene were mosquito officers officer warren is from garland and you can hear the police officers and it's written down in the pleadings mr hobbs was door check pretty hard they're attempting to discern his injuries they talk about he was slammed with the door you never know what a carlin p d officer is going to do these are the words from the muskeg police officers as alleged in the pleadings and that's are a way  forty paragraphs twenty seven to twenty nine the nd thing i want to talk to talk about is mr levine mentioned the sort of split nd decision making and i think that really is important in a lot of police cases because they're put in difficult positions but here when we look at the police the pleadings we don't know for better or worse how long it was between the moment that warren saw and the moment that hobbs acted i don't think that saying that war had to act in a split nd is really a legitimate argument in this case there are many instances where police officers are required to act in the split in a split nd but this the pleadings don't establish that this is one of them i think that ties in also to the argument about going out and saving lives i think that's exactly a summary judgment argument and belongs there and the let me give you an example of the kinds of cases where we let discovery go forward and if you can tell me how your case my satisfy that t cases where we have the suspect getting into some kind of or making some aggressive move on the police officer whether he's going for a knife or not going for a night and i'm not talking about when he shot they're talking about when a policeman then go to him down on the ground and struggles with a bellow until he's u he's neutralized so in those cases a policeman a same he was cussing at me he was raising his hands toward me he punched me once i had to do this and how does your case stack up against that when your client simply says i'm in the roadway i'm trying to i'm trying to cross the interstate  and i think it's exactly that kind of case this is this turns very much on what was going on in the context around him that defines how judge how mr warren should or perspire ended how dangerous this was to the defendant himself how dangerous it was to others that leads from the moment that warrant st sees hobbs until the moment hobbs is laid out on the ground and all of that i think ties very much into the exact scenario you're talking about and we benefit from the whole court benefits from discover in time is up and try to be as concise as possible there ok well thank you gentleman we'll take this case under advisement thank you thank you for the time