my name is chris gilbert and this morning i have the honor to represent officer alvin paley of the katy independent school district police department on nov th two thousand and sixteen officer paley faced a situation that no police officer and certainly no school district police officer ever wants to face a six foot two thousand two hundred and fifty dollars pound seventeen year old student who is out of control and trying to leave the school building which all the adults involved agreed put that student in significant risk of or contrary to many of the conclusory allegations in this lawsuit the evidence shows that numerous school officials work together as a team to try to stop j w to calm him down and to try to stop him from leaving the building they talked to him they let pace the building and then eventually they tried to stop him at the doorway unfortunately it just didn't work now officer paley did not immediately resort to the use of his taser but when it became clear that verbal redirection was not going to work he followed the use of force continuum and moved in to use physical restraint st to try to stop him from leaving the door before trying to legal issues in this case i want to address one fact issue that i think has largely gone either unnoticed or sort of underappreciated and that's i you look at the video in this case you'll see that before he resorted to his taser officer paley tried to physically restrain j w for thirty seven seconds that's a long time in a situation like this when you read the lower court's opinion especially genuine he's watching the video yesterday and it was a difficult situation and maybe it was reasonable to tase him initially but i guess the troubling fact is you know how long he's tasing him and you can even hear i think someone else says stop to  situation i you hear somebody say stop i don't think it's clear that he's saying stop paley he could be saying stop to j w who's continuing to resist and i think that's the problem and that's what makes this case at this stage which interpreted in the favor the playing of right i don't know that the judge  well that's true but i think in this case that's what makes this case a little bit unusual is that most cases deal with distinct uses of force several different distinct uses of force and there temporal gaps in between them were it's easier to say an officer at that point should realize ok got him under control i've got him handcuffed no more force or i need to stop in this this is a continuous use of the taser and we've been unable to find any case that dealt with a question of when you should that is in the record that i don't think is disputed is that when he initially tried to use the taser it didn't work effectively as officer paley testified because one of the two prongs lodged in the student's backpack and this court in the pratt decision actually when they used the dry stone which is when you actually make physical contact not with the wires but with the prongs directly that's correct and then at that point they were looking to while they were trying to handcuff them and if you look at the video it's very clear that he stops tasing him before they even get to the point of being able to put the handcuffs on him and there are numerous cases that say that tasing a student tasing someone tasing a suspect is you do it basically until you reach the point where you have that person under control and i think that this is the exact sort of nd guessing that the supreme court in cases like mullen x and kistler and some of those cases of said it's difficult to nd guess a police officer's reaction a situation that's rapidly evolving and say well maybe he should have taken his finger off the taser button at ten seconds were fifteen seconds instead of one thousand seconds that's the kind of nd guessing that i think the court has warned against and again i go back to especially in a qualified immunity case there simply are no cases that addressed the continuous use of force in a tasing situation like this i'm going to go back to the dress of the and i think that's one of the major problems in this case if this court several judges in this court has spoken both to the difficulties that police officers face in making split nd decisions about how much force when to use force and how much force to use  given the legal complexities of this issue and other judges have also talked to the case that in a lot of these excessive force cases the lower courts error by focusing overly much on the question of whether excessive force was actually used you know  police thought there are very few cases dealing at all with force used by police officers in school situations and there are even fewer dealing with taser situations there are a few circuit cases dealing with with the use of tasers by school district police officer against the student and what's if you look at the court's opinion she found three quick cases that deal with the issue in those cases we get to my no those cases are all district court cases from other circuits says johnson versus city of lincoln park r t versus cincinnati public schools and case vs amery but if those are the only cases that provide guidance to a police officer in these situations they certainly would not have put it beyond constitutional doubt that the use of a taser in the manner that officer paley used it was excessive force because in two of these cases the courts found under fairly similar factual circumstances that the use of the taser by the to police officer was not excessive force at all and if you look at the two cases johnson versus city of lincoln park there you had a court that said it was an excessive force when a police officer taste a student after that student refused to hand over his nintendo game boy  i have a fifteen year old son and he probably wouldn't want to hand it over either but now admittedly after he refused to do that the situation kind of degenerated they tried to hang up the student he pushed back they took him to the floor they  think the vs herndon is still the governing law on the circuit and the cases that have applied it her in which is a school district police force for worst case although not a taser case never addressed the issue and if you go back and look at the district court opinion in that case that issue doesn't appear to have ever been raised by any of the parties either the court or the party so the court in that case certainly does not safety doesn't apply but if you look at the cases from feel leading on there are a number of k he says that have definitely applied it in the school setting and has said that you really can't bring excessive force claims really under any theory in the public school context and yes graham versus conner says that all pub all claims of excessive force against police officers are subject to the th amendments reasonable standard but graham then goes on to say that we don't use a single standard you have to look at the sort of factual circumstances and this is a special circumstance that the courts of looked at following up on the last part of judge jones is question about the applied but another part didn't yes but in the field of school all that sometimes what we find ourselves dealing with you know we have all kinds of cases like hilo where the court says well searches are you know probable cause everywhere except for schools where there are reasonable suspicion so obviously the supreme court has never addressed the fee versus herndon issue but this court in both campbell and in forest versus desoto public schools said that you can't use the birth amendment excessive force argument to get around the prohibition on bringing substantive due process claims in student discipline situations so this is a very narrow situation it only applies when you're talking about student discipline but that was actually not an issue below the parties never argued it seriously and the court below found that this was a student discipline situation it is discipline to try to restrain a student know the court didn't fly well the court didn't apply feed to the excessive force claim they the court did apply for the two officer paley in the bodily integrity situation it's my opinion that the court was bothered by the fact that he was a police officer i think there's nothing really it's hypothetical there's nothing really on the record as to what might have happened to him wanted to but it's also very clear that he wanted to walk home and if you listen to the video he's not just saying you know it's not like he wanted to step outside and have a cigarette and cool down right outside the door he said i want to walk home and yes there's nothing in the record that says how far did he live you know what was the situation but you can imagine this is a large public high school in an urban suburban  area you know we have to guard against the possibility of danger in the possibility of of harm to a student he could have been hit by a car he could have been grabbed by a stranger i mean there's obviously many things he could have done and the school people obviously wouldn't  know and even if he safely made it to his house was there you know is anybody there to to protect him and help him we have your honor so i think in this case but i would go back i think faurisson two thousand and four is the last case that really up in this court that substantially addressed the fee issue and that's the court case where this court specifically addressed the issue the plaintiffs are raising which is that this is not a subset of due process claim this is a an excessive force claim of the th amendment officers i think you use the taser i think you have to take into consideration the duty of the school officials whether it's a police officer or a teacher or administrator to to protect the safety of the students but i think in this case you look at the force continuum and the officer was simply moving up the force continuum and like i said really there were two decisions here it was the original decision to move then which frankly i know the court said there's a fact issue a genuine fact issue over whether he pushed somebody i don't think that actually is i don't think that's a material issue because all he says is that that was when he decided to move in he didn't move in because he was assaulting johnny ogles be the security officer his very specifically moved in as all of them were trying to do because he was bats the point where he was going out the door to leave the building three trying to physically restrain that's correct it was it was officer paley officer molina and  the security officer obie were trying to restrain him and again if you look at the video they tried for four thousand and thirty seven seconds and it didn't work and it was only then that they resorted to the t current case because i think it actually goes directly to some of the questions that were asked of my colleague on the other side current of course was it a two thousand and fifteen decision issued just over a year before the incident that gave rise to this lawsuit and i think the court already knows kerryn was involved in other school resource officer in the school setting who raise qualified immunity as a defense to a student's th amendment excessive force claim and the district court denied that in affirming the denial of qualified immunity this court said something that i think is very important it said this it offered this rationale very straightforward quote slamming a student's head into the wall after her resistance has ceased is a violation of clearly established law right so that was a ruling on clearly established law in the th amendment context in the school context and i think that fact on which the district on which this court's decision incur and rested is almost identical to a fact that this court found here and that is here in this is that page w's upper back continues after g w is lying face down on the ground and not struggling i think that's a key fact is i think one of the things that you heard my friend mr gilbert mention during his presentation was well the officer was continuing to the apply the taser even after g w was on his knees and even after he was on the ground because it was still struggling that's contrary to what the district court said i think it's also contrary to what you see if you look at the video i would it sounds like the court's already current the student had committed a battery on the officer only moments before the officer used the force that was ultimately the basis for the th amendment violation was six hundred that's right although i would know that you know there's been other cases in in fact like darden where the individual involved was even larger three hundred and forty pounds and it happened in a context where it really was more of a rapidly evolving highly volatile series of events right darden is a case where you're in a private home during a drug bust no one knows what's happening in there knew him in another tasing case you're out on the street there are several other individuals here we have a single individual who we know was unarmed i was a child with an intellectual disability we think that when you look at the full context the fact that j raising here now maybe maybe you could say maybe that's because no one dollar thought of applied to a th amendment claim but how do we deal with the fact that that was not an issue in the case i think for the purposes of qualified immunity the fact that the officer never raise this sort of fee defense doesn't change the fact that current remains clearly established law so i would i would point the court to its own language in kenny which was echoed in newman echoed again in the mirror as kenny says referring to qualified immunity the central concept is that a fair warning  quote so long as the prior decisions gave reasonable warning that the conduct then it issued violated constitutional rights so i don't think an officer at this point in time certainly in two thousand and sixteen when this incident arose could read kerryn and not understand that any school enforcement officer on notice if the th circuit can miss a case like that in all honesty and quite quite easily explained you know how can you expect a high school own declaration of page six hundred and thirty six of the record where he says officers are not involved in discipline but even even if you do set that aside from even if we were to classify this as a disciplinary action notwithstanding the fact that tasers aren't typically used to discipline students it's also very clearly a th amendment seizure and so we're not disputing that you could can potentially classify i mean i think our position is that this was not discipline but even if you did classify this as corporal punishment it is also very clearly a th amendment seizure this is a law enforcement officer using law enforcement tools taser handcuffs calling for backup law enforcement training use of force continuum soft and hard hand techniques and then calling the prosecutor's office afterwards to recommend resisting a an individual and restrains his freedom to walk away he has seized that person now there may be instances of conduct maybe even the one that you just identified just cost and where it satisfies both the definition of a th amendment seizure and the definition of corporal punishment where there is some pedagogical purpose if that's the case this court should do what it's always done what it did in flores excuse me what it did in mcalester and what the district court did here which is apply both standards apply the th amendment standard to the  amendment claim and apply the substantive due process standards to the substantive due process of corporal punishment claim there's no dispute here i think that a given course of conduct by the government can give rise to multiple constitutional violations right imagine that if  entire incident had unfolded because the officer wanted to suppress speech about something he would be the same course of conduct that you might also have a st amendment claim and that would be resolved under a st amendment standard  against here right it's kerryn as well as grant rights you have to look at the specific ambiguities that the officer is trying to identify here to inject into this case right one ambiguity is well is it feel is it a substantive due process standard or is it a th amendment standard we think justified in this case i think it's telling to just look at the times and i should say on top of that you have cases like newman in ramirez where this court has said that lawfulness of force does not depend on the precise instrument used to apply it right so the fact that the officer incurring w slamming a student's head into the wall i think is still fair notice that using an even more extreme force like tasing would still the same principle about once a student has stopped actively resisting that you can no longer use extreme force that applies with i think even greater clarity in context i would just point the court to some of the timestamps on the video which i know the court is familiar with this is because i think the officer i mean excuse me the officer raises this question about nd guessing in hindsight and how many seconds are we really supposed to be parsing j w hits his knees ground flat on the ground on his back he's continuing to be tasty for another ten seconds after that after he's already lying flat on the ground so that fifteen seconds of teasing that occurs after he's already gone to his knees i think is an identical period of time to the length of the that was an instance of three seconds after an officer gave someone after a minor traffic violation an instruction he failed to obey the officer tackled him this court said that was enough time court  court case that that's right although i think again and again i pointed this court's law not not the supreme courts of this court in newman and has repeatedly said that the instrument of of the force isn't dispositive you don't need to use the identical instrument in multiple cases the othe that's right and i think the mo next case when it makes that nd guessing that nd guessing guessing language i think that's not disturbing this court's again precedence in newman ramirez guard in current we're not just talking about one kind of isolated new novel context here we're talking about tasing right this extreme use of force so for so stream in this case that it caused you to death occasion urinate on himself and regurgitate even under officer paley's own declaration that level of force is much more extreme than some of the levels of force that have been recognized as still giving rise to an excessive force violation in in this context where the suspect has ceased resisting so i think when you look at it in those contexts it's very different  a useful contrast to this case because mullen ex the officers there had reason to believe that the suspect was armed i think the suspect had actually called the police to say i've got a gun they were reacting to this highly volatile situation i just want to emphasize here we're talking about  i don't think so and i think it's also important to recognize that that's officer paley's justification is that in order to stop some speculative hypothetical future risk to j w he needed to send thousands of voltage of electricity through j w that's very different from what graham tells this court to focus on which is graham the nd grand factor which is the one that deals with a threat or dangerousness to others that talks about an immediate danger to the officer or other by standards here officer paley taking him at his word his be worried about the possibility right and i'd say under this court's case law all of those things were true in the other cases involving tasing right ramirez you had the officer you had the suspect not just cursing at the officers and being that that was at least on that record enough just to establish a violation of clearly established law i think in terms of what the officer in this case knew and whether the th amendment applies i think it's also useful to look at and i'm not saying this is a dispositive fact in the graham analysis or in the in the qualified immunity contacts his own training materials attached to his declaration i would point the court to page seven hundred and twenty three thousand seven hundred and twenty four of the record these are his own training materials they cite graham they cite the three factors from graham that we've been discussing in this case and that the court applied in newman  i'm happy to answer any other questions the court has i think i would just point the court to just before i sit down i see i got two minutes just a couple of other factual disputes that i think were not acknowledge knees that's consistent i should say if you actually look at the video j w starts screaming before the drive stun mode happened so officer paley it's true suggests that the initial deployment of the taser wasn't effective and that's why he needed to then begin dr stunning including dr stunning  record footnote one in the district court's opinion it is not clear from the video recording or the summary judgment evidence whether officer paley dr stone j w in separate uses of the taser or if the application or if application to i'm sorry or if he continued activating the taser when moving its application to another part of j w's body so that's another factual dispute that goes to this question of what was the level of force used what was the level of resistance leading up to it and the other one i would note is there's a dispute about what was happening during that thirty seconds of blacked out of video footage which i think is highly analogous to the twenty five seconds of blacked out footage in darden j w's assertion in his declaration and as the district court notes is that he was placed in a during that thirty seconds right so the question of what level of resistance he was engaged in at that point i think does depend on whether or not he was engaged in a chokehold as he says or whether he was pushing a staff member as the officer say so those are some of the factual disputes i just wanted to call the court's attention to i can see my time is up unless there are other questions thank you very much was officer paley's concern about the possible danger to j w if he left the building speculative of course it was because he can't predict the future but we don't need to look any further than this court's decision in dover says covington county schools where a school district was sued because they allowed a little girl to be to leave the school and be checked out by an adult that may have been and it was definitely not supposed to be checking this child out which point that she was sexually molested multiple times so school districts have a concern and they have to they have to act on those concerns because on fortunately in this day and age they are all too reasonable now in this case i think it's instructive that the plaintiff is sort of conceded that well if this had been an assistant principal yes fee might have applied but because i think again that goes to it doesn't make a whole lot of sense to draw a line on the application of feet to the question of whether it's an assistant principal or a school district police officer i totally agree that if it had been a police officer from the last case who had come on to school property for some reason chasing a suspect or even looking to serve a warrant and find a kid and they got into excessive force claim he wouldn't apply because that's sense now is it in terms of the wink of the of the tasing at the end you know the they proceeded to newman and said well that was that was ten seconds you know after he hit the ground but there's no case law that clearly establishes that a police officer must upon pain of monetary damages a lawsuit stop hazing a suspect the instant they hit the ground you taser him until you get handcuffs on and so if you look at the video i think it's very clear that that's what was going on  and the fact that it was ten seconds there again doesn't really mean anything you know if you go back and you look at pratt in which they did find that those officers and again that's not a school district case that's a very different case but in that case for example they found that the officers tasered the suspect for three full cycles of forty seconds plus four more tasing xin clothing one in the dr stone mode that led to the suspects death and yet the officers were entitled to qualified immunity there so these think that's why some of these cases that were cited darden newman remarries aren't really all that informative to this particular case i was going to point out the same thing that judge jones did that darden was a no knock warrant drug ra where at least the allegation if you accepted the plaintiff's version of the facts is that he was kneeling on the sofa with his hands up when he was through to the ground tase twice choked punched and kicked in the face and he died of a heart attack neuman the suspect was alleged to have been hit with a police baton ten times and was just standing there in pain when the police officer pulled his taser and used it ramirez the suspect was tase twice once just after pulling his arm away from the officer a nd time while he was lying face down on the ground in handcuffs so those are the sorts of cases were obviously there is a temporal gap between whatever it is the plaintiff did the suspect did and the police officers use of force where the officer should have stopped  n rethought what they were doing and that's true of korean too which is maybe the closest case here although again it's not a taser case you know it qur'an you have a very different version of stories i'm sorry corrine versus algeria you have a very different version of what happened if you look at you know the student said she was doing nothing physical there were two incidents of force in that case the student said initially she's doing nothing physical an officer grabs for her i d which she wore in a lanyard jokes or backwards and then through  against the wall the officer said when he reached for the i d she hit him in the head so hard it knocked his glasses off any placed her against the wall so that he could get her under control so you've got a very different version of the facts there which you really just don't happen in this case i mean it's easy to say all of the there are factual disputes but there really aren't that many disputes and in particular when you look at the video and you look at what happened the nd incident that hayes was even more extreme the student said she was walking down the hall doing nothing going to the office and the officer just slammed her in the wall in the office or said no she was trying to escape but for these reasons we think that regardless of what the ultimate substantive issue would have been the law was simply not clearly established to an