good morning please come on up and speak with us mr richardson thank you and welcome please the court members of the panel i'm tom richardson and along with francis clay we represent off the way bear and we're asking this court to reverse the district  decision denying qualified immunity dogs to bear i would like to begin by focusing on the factual scenario when officer band first came in contact with the plaintiff ms horn also b was told by two young girls there that a woman has sought to them one girl said she had been hit in the face and she had visible contusions and a bloody nose other one said that this lady had tempted to choke her both girls  you and they identify the plaintiffs the person it is solved to them once outside the concert ms horn became irate as she said pissed off and started yelling obscenities at officer barron and the other officers that were there in fact ms horne conceded she was or not comply she testified later i mean when he grabbed my arm i pulled toward me asking him why he put his hands on me she now claims she did not resist but there is a conclusory statement that odds with her admission regarding pulling her arm from him in point of fact she actually admits that she did not comply because she said that she quote would have complied if after baron had told her that she was under arrest at the point in which he pulls her arm away from officer barron now he's got two choices too he can take the chance that this person has been yelling obscenities who has already hit a girl in the face and choked another one who's admitted liao rape and who is at a minimum it off the bear and you know do you know what an arm bar technique is yeah well i don't know what the testimony was is that he puts his right hand over her left arm and he uses his weight to bring her down they're both going to go down but he's at least going to have control over at that time was there any there's some discussion in the briefs about the fact that he didn't announce to her that he was placing her under arrest is there any legal significance of that is not a requirement that he do time you know the the district judge said this was a he said she said situation why why and so therefore we didn't get qualified immunity need to noncompliance and that's where that's where the that's where it turns tell me why the case turns on that i should have thought your argument would have been that if the arrest was a lawful one that is to say the officer had probable cause to arrest the plaintiff for disorderly conduct then the officer had the power to use some force to have fact the arrest including taking her down and arresting her on the ground whether she resisted or not is that correct or does there's a case turn on whether or not taking the only evidence in the light most favorable to the nonmoving party she was resisting in the some form when he took her arm well i think that i think we went on bo was asking if she was not resisting when he was placing or under arrest and she said she was compliant at least in a high order of abstraction could the officer lawfully take her down to affect the arrest i believe what authority do you have for the proposition that they could take her down for the rest well i think the general rule that he's got to do what is reasoning necessary to effectuate the arrest in the first part didn't work he did he just put his hand on our arm and that that was a successful i think what where we were the district court no no i'm asking you to assume for the purposes of my question that you accept her statement that she was fully compliant and that she did not resist in any way when he took her arm i know factually she says two things she says she's compliant had one point in the interrogation at a very high order of generality and another point she says she pulled her arm in some fashion but let's just assume you accept the statement that i was fully compliant could he take her down at that point anyway i think he could because i think that you still have you still have to look and say w taking her down was that excessive under the circumstances was it existing bone or all the circumstances president time and i think the answer to that is that's really the minimum of a minimum usage of force it's not a gun it's not anything taser or anything stronger than that it's not a fist in the face it's in that they result is important i mean when you get one of the things you have to consider is the result and she brought her arm but the amount of force  the question we've been asked to decide necessarily is the qualified immunity question or not the underlying constitutional question right i mean you might say in response to judge marcus this question close call but in any event there's no case that demonstrated in that he couldn't do this right great with that and i think the question is what would reasonable officers and the same similar circumstances know that what they were about to do in taking her down was unconstitutional and i don't think there's a case that suggests or says that differentiation here isn't is that the modeling case as our decisions demonstrate the point at which a suspect is handcuffed and poses no risk of danger to the officer often is a pivotal point for it says the fourth client we have held a number of times that a severe the burden then shifts to the planet to show the qualified immunity should not apply and i don't think we've gotten that case yet in the from the plaintiff or from the district court that shows that qualify out of unity should not apply under the circumstances you have to ask what case law would have put  was differentiates poppen from us is that that both the chief of police and another officer tackled him after he was totally compliant and not resisting was soever and then he took him to the grand and they need him graun they did several things to him in the force in that case was so excessive that the case really turned on that that forced the case didn't turn on the fact that he was comply the case turned at least the way i read it on how much  clearly excessive under the circumstance this case contrary to what counsel says about credibility and i think the district court correctly concluded that miss horne is entitled to a trial by jury on the issue of whether there was excessive force as counsel said we have very various stories competing stories about what actually happened the day of the arrest let me begin this way did they have t had the right to use some force to affect the arrest correct western is how much how much force and given the nature of the offense that she was accused of which was dependent upon several factors including the nature of their fans whether the arrestee is fleeing or attempting to flee posing a danger not of those of no i understand the general factors but have we not said as a general and held that an officer can take someone down to the ground to effect the arrest with cops yes if the facts of that situation suggest that that's what i want to see if you're a three cases and you can tell me how to handle them where we've said that one was the ruth t v pastor the arrestee was a freelance journalist i remember the case well he was covering a street protest in downtown miami he was given permission by the officers to shoot video of the event in the street later as he was filming and arrest in the street he was standing in the street the officer instructed him to go back to the sidewalk he continued to film at that point the officer without any warning grabbed the arrestee from behind pushed him to the ground and hit him in the back in order to handcuff him on the theory that he was obstructing the officer in the performance of his duties the journalist put up no resistance and claimed this force was the court said while it may be true that the force was unnecessary it held that it was plainly not lawful writing that the police were allowed to use some force in effect in the arrest and the application of de minimus force without more would not support a claim for excess of force de minimus force in that case specifically being taking the journalist down to the ground and then coughing him behind we said the same thing in a cruel and be baulked while were a warrant was being affected on a house where someone w suspected of selling controlled substances there was a woman in the house an elderly woman the officers ordered the woman to get down she said no she refused they took her down to the ground the question was that excessive force and again a panel of this court held that that was not excessive that was didn't minimalists force we've said that we said the same thing again in a case called meyers people and i'm my question is whether or not accepting your accounting of the facts even if she had not resisted in any way could they not have taken her to the ground for the purpose or that doesn't mean they could pick her up and flinger to the ground for sure but could they take her to the ground and handcuffed her without doing something that amounted to more than de minimus force well your honor the question comes to my mind is whether it was necessary to take her to the ground and what's different with these facts is officer bearing never about thirty seconds elapsed from the time that he first saw mrs horn a profanity into the time that he took her to the ground during that time he gave no verbal instruction the reason i raise it is in the ruthie of the pastor the court acknowledged that it might not have been necessary but still the focal point was the force used to affect a lawful arrest and i'm just asking whether if the force used to affect the rest is simply to take someone down to the ground whether that violates the fourth amendment amounts to excessive force what we've said in a number of instances it does not well the court has also said that under situations where the offense was an animal this was just  disorderly i think that's absolutely relevant what the nature of the the offense and also there was no act of resistance we have mr mr horn testifying that there was no resistance to this horn testifying that there was no resistance and let me ask you let me ask you about that what your colleague says about resistance is that if you look at her account she says two different things at two different places in the course of the deposition at one point she says on ambiguously she was compliant but it is not the point she's appears to say when he took her arm she pulled her arm back in some form or fashion and that reasonable officer could have taken that to be resistance i think what she said john was as a reflex because she had no warning that officer bearing was coming toward her or intended to arrest her right her understanding was that she had been ejected from the concert already and was free to leave she had been escorted out by two additional officers so at that point it was her understanding that she could go they had told her to late and officer barron overhearing her using for fanny that he soon was directed at him immediately came in took her to the ground without saying anything without giving her any instructions without any indication of what his intent was even in placing her under arrest one one concern i have is that the district court and the briefing in this case seems to be to distinguish between her version as judge marcus has quoted her as saying that she pulled her arm toward herself or something like that pulled toward herself which the district court seems to put on the one side like no force available in that situation or this takedown not available in that situation and then other witnesses who said she snatched back and jerked back whatever as if to say would have been fine there so the now there's this very fine distinction between pull my arm toward myself and snatch back and it just seems an awful lot to require police officers in sort of the hurly burly to distinct to make that fine distinction between is this a pullback or a snap back because if it's a pull back i can't take her down if it's a snap back i can take her down i guess i have some concern from a qualified immunity perspective about how the officer is supposed to process that and the six factors in a flash what's your sort of what if you can kind of assuage my concern about asking officers to make that factor analysis of these fine judgments in the heat of the moment to avoid personal liability when you are i don't think it's necessarily that could have been accomplished simply by saying put your hands behind your back that could have been accomplished by giving her some verbal instructions where she anticipated that she was being placed under arrest rather than do that officer barron simply went up and basically as he said took her down and put his foot in our back and the entire situation i think could have been avoided had she known this was going to be placed under arrest or that he was even coming toward her he indicated he was about ten feet away when he approached her and within that timeframe nothing was said and i think as a reflex yes she said she kind of pulled her arm back not realizing that she was even being placed under arrest so i guess i asked her opponent the same question do you play some legal significance on the fact that he didn't announce his intention to arrest her is there's some is there a requirement in the case law that he do that i don't know there's a requirement but under the situation where the arrestee has already been released by other officers free to go and she was in her mind a free citizen using profanity yes but still free to leave and until she was placed under arrest by officer barron she had no knowledge that she was even subject to arrest at that point she had been escorted off the premises already and was outside of the gate so given that i think those circumstances yes officer baron who was simply just standing there at the time along with two other officers didn't give any indication that she was even being placed under arrest a question slightly differently qualified immunity law is clear to the extent that if he's engaged in a discretionary function the burden then falls to the plaintiff to establish two things one that there was a violation of the constitution or the laws of the united states here the claim is that fourth amendment was violated because the four force was excessive and t even if you meet your burden as to that you've got to establish a second thing that the law was clearly established at the time so that a reasonable officer acting under these circumstances would have been given fair notice that what he was doing violated the law it's the second part of the test that i want to ask you about what clearly established law was out there at the time that would have told the officer in this case arrest and we still take position that she was not resisting arrest she simply jerked her arm in response to being grabbed unknowingly and unexpected so given that any type of extreme clearly established the law and again for our purposes the law can be clearly established either by the supreme court of the united states this court or by the highest court of the state within the city of god and tour and he doesn't explicate them in any way but he just says these other three cases that stand for the proposition that the law was clearly established at the time of the innocence of the incident that non resisting and otherwise compliant arrest he has a right to be free from excessive force stated with that general hourly that's of course correct but we've got to go behind that if you look at two of those cases hadley and slicker in both of those cases the suspect had already been and caused and had been safely taken into custody that wasn't the case here is factually different at least two to that extent so how could those two cases slicker in adelaide clearly put an officer on notice that he could not take her down to arrest her when we've got three cases out there that say you can actually donna she had been released from custody by the other officer officer brian who took to the gate and released her discharge her so you take the position that i will what you said that the officer was free to arrest her outside the gate for disorderly conduct that she had engaged in disorderly conduct prior to coming outside of the gate at that point she was cursing an officer b testified that he was simply holding the fort for officer bray who would come back and right and i thought that you agree and if not correct it because i think it's very relevant point did officer oakland have the right to arrest her outside of the concert arena that evening officer baron a baron i'm sorry based on the conduct that occurred within the premises and what he later learned from over  and when he took her down she had not yet been taken into custody he was in the process of arresting her when he took her to the ground and i'm simply suggesting that the problem with hadley and slicker is that factually those cases seem to me to arise in a different context that is to say after the arrest has been effected as opposed to in the process is that a distinction without a difference or is that a meaningful distinction for purposes of qualified immunity as you see it i don't see a great distinction in that given the amount of force used and the other factors and in that case is there any other case that you could point us to that would have clearly established the law in such a manner as through have put the officer unfair notice that he couldn't do what he did do accepting her recitation of the facts is there any case out there beyond those that would have put him on notice or you could that you could cite me to not that i can cite at this time and in fairness i've been there sometimes it's hard to remember on your face but in your brief you refer to this case problem yes that's and so tell talk to us about papam and why you think it might have clearly established the law papam was a takedown case your opponent says papam is different and it certainly is factually different because it seems to me that like four officers beat the guy senseless after he was on the ground but is do you think you can salvage some clearly established law from from  inside in that case the facts in that matter seem to be more similar to those in our matter than some of the others cited by the district court which is why we brought that case up in our brief and i think that case does a step as clearly that the officer would have been on notice that his takedown of a plaintiff arrestee in these circumstances would violate the law clearly established so if i if i have the heart of your argument it is essentially that under the circumstances of this case even if the force of taking her down is the minimum and we look at the force applied as opposed to the injury that may have occurred even if the force was the minimize he was he went beyond the fourth amendment in taking or down in the first place because she was not resisting she was not resistance and at that point critical point if she's not resisting the officer cannot take her down and arrest through that way correct that has to be at the core of the argument right yes ok thanks very much briefly i want to underscore the fact that we agree with you judge marcus in your analysis about wants the arrest is a lawful arrest and i think the officer can use  question is the amount of force used so if i look at i understand but if it is relevant to look at the nature of the injury actually sustained in this case she didn't just get bruise she broke her arm when they took her down when he took her down would that not be relevant in the next i think it's relevant but i think it's it is not as important as examining the force she just and i don't think the force used either necessarily or or in any probability is going to end up with a broken arm and leg and you would concede would you not that the underlying offense for which she was being arrested was pretty modest this wasn't her this was an armed robbery conduct one of the sections of the disorderly conduct statute is to act in a violent or to mulch or was manner putting somebody in in in reasonable fear for their own personal safety which i think would exist based on the state  let me has with a legal question when we look at what the officer did we ask if i have it right what an objectively reasonable officer in that officer shoes could have done if that officer had all of the relevant knowledge surrounding the circumstances right yes so you would look at what happened inside the arena as well as the act of taking her out of the arena and what happened outside the arena yes and i think the reason we spent so much time in discovery and in our brief about the conduct of the plaintiff after he put his arm hand on her arm is that we want to distinguish it from those cases that are good to it is force cases in which it doesn't seem to be any justification for use of force after somebody is handcuffed for instance or in the branch circumstance where is totally compliant and then they are subjected to way too much force that the officer didn't punch or he didn't kick or he didn't use any sort of force used that used to inflict injuries just a technique to bring this the qualified immunity thank you thank you thank you both for your efforts we will call the third case now and the cooperation versus