my name is randall callan and i represent appellant corey defrayed as your honour's this case is about his support of parent calmly asserting his rights and an off duty cop who lost his temper brutally attacked mr de freyne days and left him permanently disabled and able to work or care for his child we respectfully ask that you reverse the district court dismissal of this case on the grounds pelleas use of force was objectively unreasonable for at least three reasons for eighty's posed no threat or an extremely low level of threat pelly immediately graduated elevation of use of force and the court fail to balance the phrase clearly established constitutional right with the state's interest in this  matter so what's your best case that's got similar facts because just the generic notion that you can't assert excessive force would be considered too general i think by the supreme court here so point me to a case that's similar in fact and thirty eight these are all the briefs by the way your honors and the forces on reasonable given that there was no negotiation such as i'm a police officer you're under arrest please stop resisting i'm going to put in handcuffs  who's not who's in plain clothes comes up to you and says walk this way with me what he did i mean you know he never said you're under arrest he never said you're trespassing he never said i think you're violating the law you're dangerous or anything else walk this because i will never challenge his plain clothes if you will status is ability to be a police officer at that moment that we have to deem him the police officer at that moment and that's when a police officer walks up to me and says walk this way with me i have a different reaction than when just some random guy comes up to me and says walk this way with me well well well your honor i believe that under the circumstances says is that he wasn't certain that this was a police officer because the only information that he actually had about that was his eight year old son used the word to concede that because i'm trying to imagine right now i was like try to imagine these things in my head i'm out of i'm out of a function where i'm legally there and my children are there i'm not doing anything illegal and somebody in plainclothes comes up to me and says walk this way that security officer or police officer the phrase going to respectfully disagree with that your honor that he he knew that he didn't he did not know this individual you know was as it turns out he was the husband of the i guess the administrator who was there which by the way the interesting fact which is in here is that elizabeth cohen danny the wife of mr already had his presentation that the presentation was over it was a couple repetitions of press a presentation presentations he the child has to give it several times apparently and the other parents there also were like watching the other day they would like to see what the other children were doing how they the day were you know like being parents because of course if you're at a school event in your you're a parent with children love to be encouraged and so if you're an adult encouraging in just a little a little manner because of course you're supposed to take the totality of the circumstances into consideration but it would be more unreasonable if someone did not know if a officer  did not have even a uniform on or some other in some other way convey that he was an officer he didn't gods that didn't have a uniform on he never said i'm a police officer which i find very disturbing if i'm a police officer i want somebody to do something i would merely say i'm with the houston police department off duty to show a badge or whatever could you kindly come with me please he never did that all he did say was walk this way or walk this the officer or you punch the officer or do something like focused on getting himself water well that's eight little weird in this circumstance when you're getting in a fight with a quote cop to beef that folks and i think hydration is important but that seems a little hyper focused on the water and it could lead a police officer to the kind of wonder what's happening here all due respect your honor i could use a proper face but no it isn't really  for it he he wasn't fighting the police officer he was using a passive resistance and let's say he didn't he was thirsty any of that he was just apparently being told by someone to leave and so he needed a drink of water and so that's what he did whether by that i don't know why the obvious or just inside here because he you know he is kind of he's trying to get to the water keeps trying to get to the water the dana keeps grabbing him they get to the water fountain he's clearly trying to get his arm so he can turn on the water fountain and then there's a little like a nd and then also he's on the floor and i'm just not really clear how we went from that how we went from the water fountain to the floor but there's not i can't hear what's being said so can you tell me what was being said at that moment our client says that he the officer didn't never as never identified himself as an officer or what he was you know doing or saying i'm going to arrest you or i'm an officer he never says anything like that and to elevate it from that situation getting the drink of water to the floor we've cited some case law that what was said then at that moment where he's trying to get to he's at the water fountain finally and he's trying to guess get himself a drink of water the the danny takes him and throws him on the ground what exactly happened at that moment what what was said well that's two questions what happened what was said i cannot tell you with absolute certainty what was said our client claims that  he never said anything to excite the officer and so forth but what i what i do know and you know you didn't ask me you know it as well is that was an example of excessive force possibly the officer  as a part of his anger said no you need to get out of here and you're disrespecting me i throw you on the floor that's probably what happened because if you recall  exact words were like f and don't give me a problem that i'm paraphrasing but it was never nothing then to find him as a police officer or any firing him is a crime so right away i don't know but our client says that he didn't say he didn't he neither said anything or nothing at all that so alarming or disrespectful so  i think that the i think at that point i think the jury i believe the jury could determine that mr put and he was continuing in his anger  as exemplified by when he said use the f word very unprofessional to a man who's never been convicted of a crime in his life he was a radiologist he lost his radiologist job his injuries were very severe and now he is permanently disabled according to the social security administration due to that on the record of the head injury yes or no there is a medical evidence in the in the record yes there is medical record in the medical records in the evidence and there is also his testimony about his injuries which is directly apas it to this case and in all candor were you to reverse the trial court you would have to do a serious departure from the reasoning in the holding in gregg's versus brewer now as a caveat i will point out the grids versus brewer as you noted in the opinion judge change was was not clearly established law at the time and it came down in two thousand and sixteen which was after this case but if officer brewer did not have clearly established law that is take down the new verb was constitutionally unreasonable certainly officer pedantically did not have it now i would vigorously argue there was no constitutional violation but the low hanging fruit here is the same rationale you used in greg's versus brewer which is the question for us was whether the officers conduct was unreasonable in light of clearly established law the circumstances it's important that the trial court consider the summary judgment evidence including the video and concluded based on the information available to officer pedantically at the time that is actions were not object with a couple of seconds there at the water fountain that i've been focusing on yet i have to say i thought well let me just see this video i had a totally blank mind watching the video i didn't come in there for against either side and i was just shocked i wasn't expecting the throwdown to happen at that if tell me why i will judge and i will give you some cont he knew he was a cop he said that and from then on officer pedantically reasonably knew that his commands and actions were being viewed in that context you want to know what happened i would refer you to the record at three hundred and eighty five because that's where officer to danny responded to his superiors who reviewed his his use of force he was both cleared by his own superior and by police chief rhodes and he said after he acknowledged i was an officer he again said i would have to arrest him before he would leave now keep in mind that he had also overheard him testified in the record in his deposition he was by the doorway when defrayed he said to another administrator who was his wife but was talking to the phrase trying to get him to leave and he said i'm not going to leave you're going to have to arrest me and you're the evil in this world so he hears that he's he would listen to him saying you're not going to leave he knows that the principle is come he says you're under arrest in the video he does say you're under arrest at the end of it it doesn't matter once he starts it he's effect awaiting the arrest now tell me about the waterfront because it's right i get it until that point  i get it after that point but the throw down to me comes out of nowhere and so help me with that i will is this court said context is important they had an active i would venture into discourse has never had a case where a plaintiff had to have an active shooter training requested specifically because of him if you look at the record for fifteen for twenty one he inspired active shooter training specifically because of prior incidents and with him and his aggressive behavior officer pedantically knew this predating was the one they called to do the safety training the shooter training and the principal told them it's because of the fridays they have had prior issues with them so putting any knows this he knows he sat issues with i just have a naturally loud voice and yet no one in this hallway is really reacting much except to danny i mean people are still wander around there's kids here and there and they're going about and so that doesn't seem like whatever defrayed is doing it's kind of frightening thing that makes everybody start running so is it danny what you're saying that danny's background knowledge is what made him more frightened than other people and the principal told him he's not leaving  said i need you to help me make him leave i told them to leave the principal in their goal is probable cause for criminal trespass as judge clement said in their grad case skinner v gregg which is unpublished opinion but still instruct long as he knows that the controller of the premises tells him to leave and he sees him there you held that the officer is probable cause to rest for criminal trespass now so what he was trying to do and if you look at the video watch how he's moving his body between the kids it he's got his hand out and he's gesturing him down the hall and he says in this report on three hundred and eighty five i wanted to get mr de freyne he's further down the hallway to protect the children and staff i was thinking that if an altar cation did occur it would be away from the event area where there was a large crowd it was unknown if he had a weapon on him because he had not been searched i just didn't want to wait to take action as he was attempting to get back inside the event and in contact with children after telling him we needed to walk further down the hallway and he again telling me he's going to get a drink of water and go back inside the event the comment about getting water did not seem genuine to me i was concerned about what he was planning at that point i win hands on the make the arrest and threat to the children safety and staff at the water at that point ok so whether whether it danny believed him or not he's there at the water trying to get the water and then suddenly he's on deposition if you look at the record they had to stop the deposition in if she wasn't scared why would she throw or self on the feet they had a couple people trying to keep him down as he was struggling they were when you have an active shooter somebody that inspires active shooter training and he's in violation of a criminal trespass order and he's on school property and you know what unfortunately the state of current events where we've had tragedies in schools that are unavoidable and you know that in the facts of what the officer believed and they're supported by the evidence and you have what parent among you would say well i've got an active shooter i've got a parent who inspired active shooter training who was sighted twice for being aggressive to the school before  events then leads to the final throw down i think that's fair judge and i also think the fact of the matter is that at that point in time officer perdana knew he wasn't supposed to be there the principal had told him to leave he had heard him say i'm not leaving you'll have to arrest me and he was worried about what he was going to do and he was trying to protect the staff and the children to try to get the responders back with it before they were found or at the water fountain the judge judge i'm sorry starts guiding him down the hall then you show him pointing his hand going coming down all this is after he had said i made a comment that i understand you are a cop according to his own thing and he's so now he knows and to danny's mind i'm a cop i'm telling him move down the hall he's criticized in his brief for not investigating today and he said i was trying to talk to him i was trying to investigate for the get him down the hall and get him out of a confrontational area the st time you see him when he touches me grabs and he pushes himself up against the wall and spin and it's kind of a bizarre focus on the water fountain but st he pushes away from the wall then he goes back to the water fountain and you can see the officer grab him and hold him and take him down can you catalog for me just sort of  you can at the podium the various record citations really remove any down that mr different is in fact knew that officer produce any was officer danny and not merely a private security guard or something  record on three hundred and eighty five there's another page of the side seven o two where plano says it three d five officer pedantic confirms it where he says after he had knowledge that i was an officer in his report so those are the two where he acknowledges he's a cop confrontation absolutely absolutely he stated before the confrontation according to both of them learning his affidavit before it began and as i said if you look at the continuum of force used there's no no as decided there were multiple punches to the head there here he was punching the torso to gain control of his arms that you have to gain control of the arms he didn't know if he was armed or not he said that so you said that was constitutional  greg's versus brewer and you you look at the qualified immunity analysis can you say the officer put danny with this heightened fear about this person's background and what he himself knew and what he was told by the principal was plainly incompetent or knowingly violated the law no and whether you had a weapon he didn't have a jacket on a boys or that's correct judge he didn't know he testified i didn't know what he had he had a july jacket on over something and he couldn't tell and the fact of the matter is i think that the jury would you know whether the jury would find whether he was actually resisting or not or what the level of resistance was i think the video was clear i think it's a scottie harris analysis there's nothing hidden from this court you can see the level of force used i don't even see any strikes to the head it looks like that nice strike was to the shoulder an officer testified that's what he was trying to do amount of force used i think where he's trying to go with that we can see it in the body right i think throwing somebody to the ground without any basis to do so would be excessive force so the question gets back to under the qualified immunity  reasonable is that the kind of force and was a clearly established law under these kinds of facts that's really yeah i think once he's thrown to the ground the way he was that's enough even if he hadn't his radiology job as a result and cetera not really i agree but there's a there's an issue with that and some of the cases where they talk about establishing a causal link between a certain amount of force and the certain injury and we just don't have that in this court has said before in other cases you need competent medical evidence to link i think the you know we have some case law that it muddies the water on that question that the medical evidence can be evidence of the amount of force used you don't have to have cost somebody to lose their radiology job to have used excessive force correctly throw someone on the ground like that on a tile floor or whatever  concrete top floor then that's enough in my view to be excessive force if you had no basis for using the qualified immunity filter on th violation of criminal trespass order i heard mr callinan say repeatedly was there legally he wasn't and then when the principal did discover him and tried not to escalate it and said basically you can stay to watch your kid now you have to leave he wouldn't do it he told the that actually talked about the fact that there were serious questions about troubling facebook postings even going through a divorce he had been going through custody battles he had been disruptive the school had requested additional he didn't wait for that other officer that basically goes to show that pedantic really was scared and everybody else was nervous about what was going to happen because but then he said he said i really didn't know when they were going to get there when he called the uniformed officer he said they were five he's they were five to ten minutes away in his normal estimation but he was not sure when they would actually get there obviously and he said in his report that i cited to you three eighty five the record that he couldn't wait that he was getting nervous about his actions and what he thought was bizarre behavior and the fact that all the children were around and he was disobeying his commands he told them i'm sorry yes look at the video you're going to actually see and that's going to really it's kind of interesting because you wonder if somebody is so calm and peaceful as plaintiff was supposed to be why are you getting in a confrontation why are you not just walking down the hall and voicing your reasonable concerns to somebody he had exhibited aggressive behavior before at the school that's why he had to criminal trespass warnings that's why specifically designed to him they requested safety training active shooter training and he had been in the military today and he knew that now but then he also had information his ex wife said he was in special forces according to his own affidavit he was in infantry but it didn't matter to danny had that information available to him it doesn't need to be historically accurate and he was in the military so that also goes into the calculus but one of the principal tells him i told him to leave and he's not leaving and he's not allowed to be here you said that that gave a reasonable officer probable cause to arrest for criminal trespass and that's and that's clearly what we have here now and the excessive force as i said i don't think it's excessive there was nothing but he started out with commands verbal commands they were not obeyed go down the hall with me  his hand on his back to stop him from moving away from him keep in mind that during the whole event this person defrayed uses going where he wants to go he's doing what he wants to do he's not supposed to be there he shows up he claims he was well it doesn't matter he tells the principal i'm not leaving principal says stay here don't go wandering around like nope and do whatever i want tells another administrator you're evil you're against me you're going to have to arrest me and then he does get arrested and frankly it's a scary character there aren't many parents who specifically get that kind of treatment there's something there and put danny knew and and he knew it and those are the facts that the district court relied upon to say that he did not behave unreasonably his conduct was not unreasonable and i submitted the u s can do you know case in supplemental briefing i apologize but it came out from the supreme court right about the time we were filing our briefs and i simply cited that's the the range is somewhere between the exact down to the nd facts and a high level of generality that's correct  received he testifies that he has a traumatic brain injury and who would know better than that you don't know if there's actually something with a doctor signature nurse a signature up record is that what you're saying i'm not certain of the record you're not saying it has to be i'm just asking big threat apparently he's an active shooter at a school and they dismissed the case against him column column column by and they're saying that they feared he could be an active shooter and having just had two active shootings this past week and i think people can appreciate you'd like to prevent them rather than simply oppress them afterward i understand that anybody with weird behavior apparently can be an active shooter all these shootings that we post them and then we you know do the training well if they did not do the training before that that certainly is not due to that seems like their own negligence right and so and what  the apple in these forty four seconds are some up for us your best argument why we should reverse on qualifying there there was no he was never told that he was arrested and nothing that our client said nothing at the at the fountain he threw him on the ground and it's long been known that injury to the had is a very very serious he need them right in the head and they say of course he didn't need him the shoulder but even look you look at the case law you can even the people in the shoulder so what we have here is the classic fact issue they say one thing we say another but this is the classic case of the argument under attributing all the facts to the defendant when it's so to be should be attributed to the pla