good morning i'm a place court i'm jason way myra i'm here on behalf of deputies teresa cardenas and kevin casal the county sheriff's office this is our appeal from denial of qualified immunity and therefore force claim and then what the district court characterized as our right to bodily privacy claim unless the court directs me otherwise i plan on focusing on the tazer claim because it's the most fact intensive and it seems to me likely to take the most time so qualified immunity that assets of might not be good for you well it might require a lot of discussion and i certainly hope so but at any rate the other ones i think are not as fact intensive qualified immunity asks whether the law's clearly established beyond debate that the officer stepped over a line that is that exists when that officer acts that the officer should have known about in the use of force context of course it's a multi factor test that takes into account all the facts and circumstances the closest thing here to a bright line rule that i can find is stated in the u viene of it case of a bar and it's this the use of a taser gun to subdue a suspect who has repeatedly ignored police instructions and continues to act belligerently toward police is not excessive force that's the ok it's only a claim against a pity party so why shouldn't we be talking about the gram factors and that how you evaluate an excessive force climb that's true so what what was the i mean when the one part came into the house mr brand had not committed a crime i disagree your honor in fact the district court found otherwise the district court found that there was probable cause that mrs brand had already committed thirty grief cruelty to children which requires as an element her to be the primary aggressor because that's that's what you say is the is the for the underlying crime which is the first graham factor there are at least there's a hundred little teeth to children yes that's that's undisputed here at least that's the district court's holding that there is probable cause for that offense there are other offenses here did you make that argument to the district court yes your own i mean in your brief it looked like to me your argument was the deputy part dina's had the right to ten days mrs brand because she refused a lawful command to put down the telephone that is a second part of it that's what happened immediately before the taser happened and had ms brin committed the crime of cruelty to children at that she is in radio contact with deputy because sal she hears she does a status check she asks him for the status he doesn't respond so she knows there's something wrong then he calls for her to come to the front of the house and he calls for other backup officers when she knows something's wrong so she runs around she sees a scuffle at a fight in front of the house with dead well they say was evidence that she couldn't have seen the scuffle so i don't we don't we have to assume that she didn't see it i'm not sure your honor what you referencing nobody else had doesn't come in around the side of the house and because of the elevated location of the porch there are photos in the record of the porch from the place where roughly deputy prettiness was so a person in her position could see that there was a scuffle going on as she mainly saw deputy casella is part of it which is him getting pushed back and somebody from within the house pushing and throwing punches at him because mrs brand is inside the house at this point right mrs brand's testimony is that yes she was inside the house except one deputy to sell tried to pull her out regardless deputy party as it goes that the stairs departing as it goes into the small enclosed for your area she has or taser drawn she's surrounded now by four people from within the house there just been a fight with deputies south and depay party as is now faced with a volatile situation mrs brand acknowledges admits that she was still very very excited and she's you're referring to the district court orders so i just want to go back to the grandparents the second one is whether or not mrs brandon pose an immediate threat to the safety of the officers and the district court order or says quote defendants have not offered any evidence and conjunction with their summary judgment motion indicating that mrs brand made any aggressive moves toward either off i disagree with that and it differently we don't disagree that the district court said that the district court said that no question i disagree with that conclusion and that conclusion i disagree with primarily because there is already finding that there is probable cause that mrs brand committed a felony offense didn't didn't you adopt the plain of subversion of the facts about her interaction with the two deputies so let me explain that and that would be yes well the standard for summary judgment is that you believe the plane of story and presume that it's true save in that sense yes because that's what i have to do it's a waste of time for anything in your statement of material facts then we are bound by her facts just like the district court was well within our statement of material facts there are facts that support that mrs brand what is it going back to to just priors question what is the evidence that that officer parvenus knew that mrs brand arguably assaulted the officer casella let's assume that you're right dick that the pictures show you could have seen it and that she does fives you sell because sal falling backwards how does she know he which of the four people committed the assault that goin so when deputy prettiness comes in and she already knows there's been a fight she has a discussion with mrs brand and mrs brand explains that she's part of the fight that she is part of this physical confrontation that deputy sal tried to come in and she didn't want him to come in not so that's not the only thing that's not the totality of the circumstances here that to tell you the circumstances is we've got a violent confrontation and an officer who needs to exert control over a scene in this is brand is a is a large unrestrained felon at this point who is disobeying a lawful command deputy party and this is a small enclosed space she's got other people who are combatants who are not a bank commands so she needs to exert control over that scene michigan the summer says that that everybody safer when officers are able to exert control over a scene like this so that's part of what's going on but it just touch on your other two are units in terms and struction to the other officers to do a protective sweep is is it your reading of buoy or anything else  officers would have been allowed to look at drawers as a part of a protective sweep there are cases that deal with that sort of issue and they are mixed i don't i think a protective sweep is limited to places where a person can hide because that's what  of it while but i mean her testimony was that her breast was exposed right i think along those lines i can't remember the specifics i mean it may have been that if we give her a shirt you are you you're not defending the officers unwillingness to just give her a shirt i mean her husband standing there say and can i give her my shirt and according to the testimony no you can't give her your shirt i mean what wouldn't it be better for us not to be sitting here talking about it if the officers are just covered her up like she asked for them to so my answer is twofold one is we have to believe the plane a story i don't exactly believe the plane a story about that being the way it happened but regardless for purposes of summary but then we have to believe the plaintiffs right so the share covered different areas of the body it could be arranged to cover mrs brains breast area i mean that you represent these folks i mean maybe you should have a conversation with them look does give give the people something to cover their right or wrong about that in control of the shirt and yes while so i think control of of a missile brand they would have that the officers would have backed off and let the paramedics decide what they're going to do in terms of covering  reserves there any evidence of that one way or the out that's normally the way it works once officers i mean officers have to make sure the scene is secure and the paramedics are safe once the paramedics are safe then they come and deal with the patient in the in the police back often aren't charge of security i hope that answers your question thank you thank honor we do look at the facts from the movement's point of view and the problem is the council's always looking at the facts from the movements point of view even even just now there's no evidence said these people were belligerent one of them was holding a baby for god's sakes and in fact if they were that belligerent then why weren't they handcuffed or anything else during the protective sweep they just walked around while the officers went through the house and one of the things the officers did pursuant to the mr casals instructions and he admits that he instructed the officers you know to go through the house is opened that there was cruelty to children she said if those charges were substantiated was how she put it and she did that a page thirty seven footnote twenty five of her second order on summary judgment the one that we're here for today so that that didn't happen according to miss davis i asked you this question on deposition you went through this whole thing you didn't mention any commands well she didn't she said yes you're right i did not mention any commands and that's a page record forty eight page sixty four her deposition she didn't give any warning she she said basically that she was of she phrased it that she was afraid that possibly possibly she might be going to search for a weapon she got shot in the back she was running away from running she was moving as fast as she could because she had a problem with her foot it into her foot years before so she didn't run particularly fast so she was moving away from the officer up the stairs and this is the ironic part of it she was moving to call the police i think the question is what does she say in her and her incident report that she was possibly that she was maybe possibly going to get well i mean the point is she doesn't know what she's doing and if she did she say she commanded her to stop your honor when i asked you that specific question in page sixty four of her deposition as she went through what had happened i specifically asked her you didn't make any comments about a command and she said no i didn't that's a page sixty four of her deposition so you know she didn't make any command to stop she didn't give any warning that she was going to taze at that particular point she was not under arrest and this court has basically held that if you haven't been charged with a crime which at that particular point she had not been charged with a crime that you can't be evading arrest and that was the howard case i mean howard versus hudson it's six thirteen federal pen dick's age sixty six the three standards the severity of the crime now she was charged with as she went to trial she was acquitted of all these charges the severity of the crime has to do with with what happened allegedly with mr can sell and you know i wasn't there all i know is that a jury acquitted my client of that mr purcel when then even after the person that they were looking for went to the porch and said person he still wanted to go and he stuck his foot in before he knew anything about what was going on he wouldn't get out and all she was trying to do is keep him out of the house she had the quaint notion that the house was her castle the immediate threat she was not an immediate threat to she was not an immediate threat and we get back even to the standard operating procedure of cornet county which says what you don't know cannot be a basis for using this kind of force so the standards and the facts looked after my clive's point of view do not justify in any shape or form what happened with regard to officer because south putting his foot in the doorway the district court found that there was a continuing violation because of that even though he subsequently learned that leslie was in fact inside the house and it seems to me at that point once he knows that wesley is inside the house that that cuts off his liability and wondering what authority there is for the the district court's position on that well you are i know that i argued it the following way i thought he had no business being in the house period but i also argue that the moment that he shot he put his foot into the door that under o'rorke and kalo in the supreme court that he had broken the curtilage broken whatever that magic line is from outside the house into the house and at that point when he did that he testified that he didn't know anything about whether or not this gentleman was at the house now the problem of course is set out in a footnote by the court because she being more forthright than any of us the problem is that the warrant they had a den of fide wesley as a twenty seven year old male for our purposes the problem is that wesley is seventy was seventeen or eighteen years old and he was living as a woman and that was part of the problem because mr casals kept saying i need to see this twenty seven year old man and nobody could figure out what he was talking the bell so he stuck his foot into the door and she said you can't go in and he demanded to go in and even after wesley presented himself or herself as the case may be he continued to want to go in checked and wesley ruled against me on those arguments so let's assume that officer officer had no justification for sticking his foot in the door but then after wesley comes out and goes back into the house he knows that wesley is in the house purposes my purposes i was arguing for the thing that i survived on that sticking your foot in the door without any knowledge is a violation of the fourth amendment and i think i agree with judge pryor ish i think she's hit on the weakest part of the district court order i mean the deputies have a warrant for wesley brandt forty one seventy nine valley brick they go to the house the first person they encounter seems to acknowledge that you know there is such a person that lives here let me go ask his mother or get his mother or whatever so i mean if the if the if he needs is a reasonable believe the person who's the subject of the rest aren't is there to to go in the house and look for him then he's got that your honor  think you said differently united states versus reynolds when you're on the district court there are two parts that i get reversed on now actually that came first and numerous district judges have cited you from the northern district of though he testified that he didn't know whether wesley was there or not when he originally stuck his foot in the door and judge totenberg ruled i think correctly that it sounded like a post incident rationalization but we were supposed to look at the object of reasonableness aren't we well then the question is what did he have the answer was that he had conflicting events he had he reynolds and this case they had a warrant that listed his address at this particular place but they also had a statement from jail where three months earlier where they had put down that his address was unknown so wasn't like you know that they only had the warrant and they had done a new that's to go they had they had they done no investigation they had no knowledge and they had their conflicting evidence so they had evidence one way and evidence the other way how can you say that there rick par dina's have reasonable suspicion that he was there and carousel didn't they both have the same information when they drove up well your honor i must tell you that i did not say that  how can the judge seem to me that's logically inconsistent when they both career have the same violation violating the courage they both have exactly the same now age and they're both there at the same time how could one be how can one ha reasonable suspicion of the other not your honor i agree with you that's my argument that was my argument i don't i didn't get a chance to appeal it's not a final judgement but i agree with you completely i don't think he had any she had any business going into the kernel ij and that the only difference i can see is that she wanted to the courage and mr sal stuck his foot inside the door if you have any other first questions i'd be glad to answer them but if not i'm just going to sit down but i want to go back to the taser instrument incident for a minute i'm looking at the district court order and the district court judge said according to the plaintiff she's taken your version of the facts deputy partying as parvenus ordered mrs brandon drop the phone now you said there wasn't a command but she said quoting your facts that were that's what she's basing her decision on and then she didn't drop the phone but instead responded to she was calling nine one one so assuming you have a person who you may have reasonable suspicion committed an offense who's standing there calling nine one one i presume your position is that doesn't justify tasing at least without a warning that is my position that is my position i mean if you look at the grand factors i don't see how the gram factors can weigh against my client but i guess i was found taking back what you said there was no command the garden district court order your honor she said that was your position that there was a command your honor i was quoting this per diem his deposition at sixty factors give you the right to figure out what what are the factors in this particular case they didn't give a warning that's another factor although it's not required it's certainly is a factor there it has never been a case that i can find where somebody was allowed to taser somebody in their own house i don't think you ought to start a trend the other way that's all i'm going to say about that back again i believe the judge martin was on a panel where recently a person was tasered in their house and that that use of force was upheld it was smith to be a page i believe so there is a case like that  it's a pepper spray case but not that doesn't matter in our view because pepper spray and a taser are about the same level of force so in the jones v michael case there was a disturbance there was an arrest and then a gentleman named bass was trying to get to the police he was in the police are holding him back he was kind of offending them off with his arms that's all that he did that supported a defense then later within about a minute he's talking on his cell phone he is he's still agitated for officers walk up to him they don't give him any command he kind of ignores them and then an officer used pepper spray on him he falls to the ground he's pepper sprayed again and this court held there's no fourth amendment violation here so is he doing anything that threatens officers at that point no he was he was guilty of an offense a fairly minor offense he was part of a disturbance and he's talking on a phone officers don't tell him to put the phone down but they pepper spray in many way and that's a legitimate use of force so here i think we have a stronger case for  graham factors are established beyond at this point i think they are but it's a multi factor test and test really deals with the to tell any of the circumstances scott be here as says there's no magical on off switch there's no specific you know magical test rather it's to tally of the circumstances so again i get back to the rule that the use of a taser gun to subdue a suspect who has repeatedly ignored police instructions and continues to act belligerently toward the a warning rather mrs brand just takes off goes runs up the stairs and that is precisely why deputy party has fired the taser mrs brand story is different so we have to tell her story and presume that our story is correct for purposes of summary judgment her story is she refused a command to drop the phone and she explains deputy party is that she was part of the scuffle that happened less than a minute before the taser goes off so is it appropriate to use a taser in this circumstance yes especially this volatile situation where there are multiple combatants wesley brand pled guilty to felony obstruction for fighting with deputy cosat out so there's a strong need to use force here and it was appropriate it's a fairly low level force it's over quickly it defused the situation fairly well so that the argument on that inner guard to the illegal entry claim i don't think the district court reached whether there was reasonable belief that wesley brand was there at the time in a different order i think the district court ruled that you know based on this court's precedent when it's eleven o'clock at night you can presume that a person who lives there is home at the time in fact  and so that presumption carried the day on that particular issue so far as whether this is his residence i agree with you judge malloy that it is inconsistent to hold that one officer can has a reasonable belief in the other officer doesn't furthermore there's a presumption in this circuit that where a person gives their address you know six months before that that the police can rely on that and presume that six months later it's still their address will this hear the information is given for months it's a booking report or westly brain gives this address as his home so is the reasonable belief yes that i mean that's the presumption that the police are allowed to rely upon and then when deputy sal gets there he runs the car tag there's a it belongs to mr his brand is probably related to wesley brand the person they're looking for on this felony warrant so in the midst of alaska's knows wesley brand knows who he is so that substantiates reasonable belief that he's