looked over the case and to the hearing the court dismissed the fourteenth amendment claim after deliberating on the facts however the judge who are now in his opinion from the bench decided to allow the fourth amendment claim to go forward and it is that dispute that is before you today was the fourteenth amendment claim just substantive due process claim or something like that yes it was wrong ok that's often due process claim and and it was befitting of the facts of the case when we look at the case under a fourth amendment analysis the question is whether or not the fourth amendment even applies under these facts and the dummy in case cited by the plaintiff actually lends little support to our argument here and that it says that the fourth amendment is intended to protect against and in the dress the intentional misuse of power not the accidental effects of otherwise lawful government conduct that's important in this case of these facts because what happened here was clearly an accident officer ernst had probable cause to approach a suspect who had been fully in the middle of the night after being found behind a bank and under a sus under the belief that perhaps he was involved in larceny from audible beals but didn't th action well the officer did was unlawful to take the vehicle out of this equation at the end of the day nobody gets sued and there's no there's no constitutional violation and nor is there ever a requirement that a police officer in his discretionary call to try to essentially confront the plaintiff on a on a roadway because he's crossing a bridge and if you see other side he can dart he's just coming out from the woods on the other side his tactical decision move forward that's the facts of the desoto analysis you can't take a twenty twenty hindsight viewpoint the fact that it was intentional isn't the issue is is it unlawful there is nothing unlawful in the situation for officers to have stopped the plaintiff on the roadway this third brief thirty seconds that they were there there's no question that officer ernst was just as surprised as mr lombardo that a view could come in fact if you look at the video and i know that you did there's no traffic on this roadway it's at two fifteen in the morning on a roadway this in a business district and the only car they come southbound on that point up to the point of that confrontation over the time that officer is parks his car the time that he actually gets out of his car happens to be mr green's automobile the next probably comes a truck that doesn't hit them or pa and then it stops and then it turns around and leaves other than that there's no other vehicles on throat so in that timeframe we're talking about one car in a in an area officer testified that when he got up there he looked north didn't see the car the videotape shows or no cars coming down south on van dyke when you look north when he confronted the suspect grabbed him by a shirt tried to lead him back to the car when he when he took him back to the car as he's walking back to the car which is the proper place to go by the way and this is because on the roadway in particular on this roadway there's two options here go behind the vehicle or take them to the side this to be heard by jury correct why is that wrong well it's wrong for the first part because it goes back to the fourth amendment does the fourth moment even apply in this situation do you get to the analysis that starts for an for number one first it's not unlawful conduct or what officer instead there is no excessive force claim here there is no claim that they didn't have a right to stop him and that's not issue here this is a claim so your argument is that the only thing that that's at issue had a previous case very similar to the idea in this case where the concept here is why davis controls these this particular situation here and the reason i think davis is important here is because in davis there is a duty of the fourteenth amendment which is adequately protecting the pla rights here and that they're supposed to be put under some sort of protection by the officer of the officer who creates a danger i'm not saying officer didn't this position but let's say for purposes of players argument the officer creates a danger here the fourteenth amendment applies under davis in fact judge docherty you wrote that seizing an individual actually having them in custody is what implicates the fourth fourteenth amendment and that the fourteenth amendment a right traits a duty that a police officer has some requirement to protect and protect the individual from from harm unintentional harm this is an intentional harm this isn't the case one officer struck somebody or use the taser on that's not this case on a fact mr limbaugh will testify the none of that happen all that happened in this case is while they were in the process of detaining the suspect and take him back to the car for safety and unintended accident happened a vehicle came struck him at two fifteen that night the only car in roadway for two or three minutes before the incident even occurred and the testimony from all the witnesses were this was a complete surprise to everybody nobody saw the car coming even people were located more southerly looking north didn't know the car was coming so from that aspect you look at it and say the fourteenth amendment analysis is what applies here because this isn't excessive force case in fact planet has not shown a single thanks where there is a clearly established right on the fourth amendment to be free from being detained in the middle of a street in fact all of these cases are excessive force cases and it's his burden to prove that and judge tarnow respectfully punted the guys he basically said i'm not going to make this call ever said that an officer has a particular under the constitution the fourth amendment has a particular duty of care in the manner in which he or she effects a seizure no not not under those facts i'm sorry it might be a harder argument for you you know the fourteenth i don't know where i guess we're here to talk about the fourth it's the fourth exactly why i remembered little the fourth but you're right your honor and let's assume for the moment that there's a fourth amendment analysis to be made here ok well is there a clearly defined right that an officer would know he's violating as a result of simply stopping somebody in the roadway who put himself in the roadway by the way don't forget officer  rain bring him back officer and stopped him where he was officer ranks went up he had a fully lit vehicle with his with his headlights on the spotlight on a blue car a blue reflective paint in a white car underneath trying to change him get him out of the roadway in the back his vehicle and even mr green the driver the other vehicle said yep i saw them walking towards the back of their car and they were within four to ten feet of the car another ten seconds another five seconds this accident doesn't occur but it's an accident and that's the key so when you're looking at officers you know under a fourth amendment alice's you still have to look at the question of whether or not his actions were reasonable and even if they were what was a mistake reasonable  this situation was the idea that officer and said look north didn't see a car confirmed on the video comes in and tries to get him out of the roadway within thirty seconds is that a reasonable comment from an officer under these facts i think it is so even under fourth amendment of those facts just how do i think respectfully got it wrong now this is not a case where there's an abuse of power again this is an accident as a result of officers lawful conduct that's a fourteenth the sole issue before you is what is the appropriate standard to apply to this case as you know this is an appeal based upon the failure to grant qualified immunity so the only thing that they can argue is there's a legal problem here is this the fourth amendment that applies or is that the fourteenth amendment that applies in this seizure case the court as was represented by judge donald the trial court did find that when looking at all the facts in this case there was a question of fact as to whether the fourth amendment was violated what is the factual question that is material to the outcome of a fourth amendment issue in this case is was the conduct was the seizure objectively reasonable usually circumstance i mean when we speak when we ask that question are usually talking about whether there is a sufficient basis for the seizure whether there were sufficient grounds probable cause reasonable suspicion etc we're not reuse really in my experience admittedly limited we're usually not talking about was it done carefully so  i kind of go back to my original question what in your mind is the factual question that remains that is out there upon which the for some fourth amendment issue terms whether it's reasonable under the circumstances whether these what's reasonable the seizure whether he had enough grounds to suspect that your quill we're not challenging that i will submit to the court that officer ernst certainly had probable cause to engage in initial step in detention but the issue here is under these circumstances was that seizure appropriate is judge that all pointed out we have an officer who for whatever reason to sides to stop a seventeen year old teenage child in the middle of a forty five mile per hour highway unwished in there for some time the teenager had put himself there but i mean let i'm just trying to understand the legal framework that we're dealing with here so normally in fourth amendment cases we're asking was there are sufficient basis to seize where was there enough suspicion of criminal activity to stop to take away the person's liberty number one let me just get through it and number two in some cases was there did the officer apply excessive force not to minor standing we don't have a claim that the officer applied excessive force it's undisputed the officer had sufficient grounds to stop your client and so it seems to me that you're arguing arguing that he was negligent in the manner in which he sees them is that mistaken yes i think what we're kind of playing semantics with respect to excessive  force yes we had officer has to apply excessive for not another color no it's under the circumstances what is this stop and seizure under the circumstances objective really reasonable are we talking are you are you saying the officer plied server are you saying that yes the seizure was on reason or he didn't have grounds for the seizure i mean it excessive force in stopping are two different things under the fourth amendment ok and in fact i this yeah please what if the excess the forwards that you allege the opera third engaged in or committed what we argue is it is objectively unreasonable to stop a seventeen year old in the middle of a highway knowing that there's an incoming vehicles or you think at the stop it will constitute a force under the circumstances not to stop in another itself he's allowed to stop but to hold someone out in front of a moving car that's going forty five miles per hour he didn't do that on purpose though he didn't use the i don't he didn't use that there's no allegation he intentionally put your client in the path of the vehicle all there is no i mean with a specific intent of having him hit by the vehicle intended to have been there he claims that he kept looking down the road he would have seen the on coming vehicle the standard again is is it objectively reasonable now here's i want to jump more to the legal analysis  what standard applies really depends upon the status of the plaintiff at the time of the seizure when you look at phelps when you look at graham what they make clear is look if you have a plaintiff who is a free person at the time of the seizure by the police officer then that seizure will be subjected to the fourth amendment standard which is a much lower standard obviously than the fourteenth amendment standard i just have to show that the conduct is objectively unreasonable phelps and graham state you know if you have a plaintiff who is a convicted prisoner and you have a police officer in gauging  in a seizure well because this person is a convicted prisoner you have your subjected to the eighth amendment and you have to show deliberate indifference that is a much higher threshold i mean now if you go be more appropriate you're talking about a pretrial stops law enforcement things that invokes the fourth amendment we have the other extreme as to what that's what i'm best whether that stop that seizure is objective lee reasonable in what sense whether he had adequate grounds or whether he's following a duty of care whether the force and the manner that he applied it under the circumstances was reasonable so you're saying there's a duty of care i mean that's what would be objectively reasonable under the circumstances yes now let me ask you a question i mean because the officer had to violate the clearly established rights your client right off i mean what kid s establishes the sort of duty of care clearly establishes for our purposes that that an officer has a duty to be reasonably careful in the manner in which he sees somebody there's cases although such as that the officer has a duty to be careful as to the c for seizure to be reasonable it's not just i had probable cause reasonable suspicion it's also you have to be careful in the manner you do it push for example what kate what cases would you cite as to there's the shreve case there's the griffith vs coburn case which says the sixth circuit clearly establishes the right of people who pose no safety risk to the police to be free from gratuitous violence during the arrest isn't that excessive force though that's an excessive force holding not it's a fourth amendment holding but the fourth amendment isn't this monolith it as different it here's where i want to try to illustrate this i think this is there's an unpublished case out there but it provides great guidance it is a six circuit decision it's not in the brief i will provide a letter of supplemental authority to formally apprise you of it but i can tell you right now it's the georgia versus state of michigan case six circuit sixty three fed eight p p s two away two thousand and three u s app lexis seven nine four nine in that case we have two state troopers who pull over a motorist because this motorists are speeding in swerving in and out of the lanes they pull over the the expressway the motor says pull the lever on the service drive in the officers approach this person in decided they're going to do a field sobriety test up on the sidewalk right next to the service dr while they're doing the sobriety test all of a sudden another motor vehicle starts speeding starts coming through the entrance of the service strike in careens out of control out of control start sliding along the sidewalk near the side of the road and unfortunately hits the plaintiff while she's out there getting a sobriety test in unfortunately she's killed now in that case it's somewhat similar to what happened here in their case even the plaintiff alleged a fourteenth amendment claim in nothing else saying look at what you would do you place it more natural quite it it certainly what you do place the decided in your custody mr officer in you know what you have a duty of care he have to protect you you didn't do that because you conducted the test in the service strife we submit that that's dangerous because our fourth amendment so it's on but i'm still scratching my head as to what that's let me finish i'm sorry it's an unpublished case you know and we need clearly established law in the circuit that you the officer had a duty to be reasonable in the manner in which he conducted the seizure not that he had a duty to stain from excessive force because there wasn't any here own infliction of force or the manner in which he you know you keep your subject free from excessive force ok now in the georgia versus state of michigan case the defendant make that argument look it you can't subject just to the fourth amendment standard because we didn't engage in excessive force we were just doing a surprise to test out in the street how can you claim that we did excessive force truly here comes a motorist careening out of control that hit the person but does that now turn into a fourth amendment standard in here's what the court said they said look when you look at graham graham tells us that all claims that police officers here of were there  using excessive force in the course of an arrest investigatory stop or other seizure of a free citizen should be analyzed under the fourth amendment and it's reasonable that standard the court went on to state here they said look it while the a state in that the troopers used excessive force but instead they claim that the troopers exhibited deliberate indifference to point this well being that distinction is immaterial to our analysis when as  case here the conduct of which the plaintiff complains is committed by an officer in the usual course of a walk in force an official's arrest investigatory stop or other seizure we analyze it under the strictures of the fourth amendment they applied the fourth amendment and they were on the further state they said look at when you pull somebody over like they did here everybody agrees this is a seizure within the meaning of the fourth amendment and then they state the fact that the plaintiff was also struck by a vehicle operated by a third party does not alter that characterization and they go through the analysis now they did find factually that there was no fourth amendment violation but the in that case are different than the facts of this case judge tarnow already ruled he said look i think in your case the fact that you have an officer who didn't turn on his flashers was trying to surprise your person he concealed the fact there was a police car in the middle of the road that's forseeable in the georgia case the court found just the opposite they said look at we think this seizure under the fourth amendment was objectively reasonable because just because they were doing a sobriety test the curb they had the emergency flashers on it was unforeseeable to them that a few minutes later someone would be careening out of control in hit this person unlike the kids here he  so i understand what the district court did was to say that there was no qualified immunity because there is a dispute of material fact now when a when a trial judge says that it's not whether these facts are reasonable or unreasonable a disputed fact it's material to the case is your side says one thing with regard to the facts and the other side says something different and puts the  conflict and so i don't understand what the what the disputed fact in this case is but judge tarnow didn't say what it is and if you could help me figure that out i'd appreciate it sir what we claim is that mr lim bardot is calmly walking across the road he is then all of a sudden out of the blue approached by a stealing speeding police car with no overhead flashers on  the officer yells for him to stop in his tracks and if you've gotten to the dispute yeah yes they're claiming look at he tried to run he tried to flee he wasn't cooperative we say he was very cooperative he listened exactly what the officer said he said stop great there he did he stepped in the very middle of the road he waited for the officer to get out the officer tried to handcuff him they tried to say that he was trying to flee the officer had no choice but to try to  to argue that the officer was in the process of walking him back to the car when this car came down and hit him we say no mr lombardo testified and said i was standing right there if you look at it and i never moved if you look at the the videos you will see officer earns demonstrate on the video exactly what he was doing where he was standing they dispute that they claim he was behind the patrol car at the t well i think it's material because the facts resisting then there's no choice for the officer he can argue i would stop by having this stop this arrest take place until the highway because i couldn't control the subject here the subject was listening to his officer was unable to take whatever reasonable action that he should have taken if that were to suppose and maybe you should as defense cuts that because i think when you look at all of our facts i don't think there's really any dispute that this is an egregious set of circumstances with an arrest where you physically restrain someone you decided to interact in the middle of a highway in you can see lights of an incoming traffic coming that is agree just their argument is they try to get out of it because they know that's a bad side effects that's almost slick intentionally holding somebody out there sticking them out there until such time as the car approaches honor i go in somewhat order for camp the george case that was set up by play if i were they case some published decision first of all second of all you didn't know that case is going to be argued today i guess i didn't know it was going to be argued but that was that they did not agree with that judge not agree that was a fourth amendment alice in fact the only reason the judge went along with that opinion was simply because the facts in the outcome were the same because there was no fourth there was no fourteenth concurred in the opinion in the result only not in the reasoning behind the opinion in fact i suggest you that the concurrence is far stronger and actually goes along with the brady davis analysis and the rest  fourteenth amendment claim all day all night that's what that is in the end you're right the distinction that can't be parsed here is if you put this on the fourth amendment what do you really looking that you're looking at in at an argument that says well anytime  somebody during an arrest that's a fourth among violation we're going to put that under the subject of the reasonable standard as opposed to the accidental injury standard of the fourteenth which is this shocks the conscious deliberate indifference standard which is much higher and if you think about the chilling effect that has on qualified immunity as a whole qualified immunity is intended to protect an officer from this type of frankly error if it's an error and it is probably a dumb move not to put it is you know as rollers but  turned and said what about what's going on why am i being arrested and the officers hold onto a wet shirt and he said you know what white shirt guy's already going to jackrabbit running i'm going to put handcuffs on him that's his discretionary tactic you're asking to go twenty twenty hindsight second guess is often the officers decision to try to surprise him after knowing full well that the officer was told that he was looking for a pickup vehicle knowing full well that the officer was told that this guy's going to run as soon as he sees you and the officer tries to do his best sees guy coming out the woods comes up parks and the other roadway most of them borrows testimony for what it's worth the guy claimed he was in the road for ten minutes he kept walking it's on video it's understandable he walked into the darkness the officer jumps out of the car and within that thirty seconds that small window of opportunity to get him detained and taken back to the car to get it there's no you're absolutely right there's not a case on point that does this blurring when mr wagner stated was that under the lanham in the phelps decisions you look at the the fourth of the eighth and depending on the excessive force case that's correct because the abuse to a prisoner is considered to be abuse that is a reasonable punishment whereas abuse in the excessive force case in the fourth amendment is dealing with the wrong of the stop so you look at the two you're not thing that there could fed of facts where the injury flicked a third party to one in police custody could not create liability under the fourth but you're saying that this is not the fed up that this is not that's the effect that's the question thank you all right as a surprise to all and what he meant was he tried to go up there with no lights and no flashers with the blinding spotlight ten coming traffic he surprised green green testified i didn't see it i don't suppose care all right we understand thanks those