if i may the panel we have here is a qualified immunity case and it is very clearly and i think there is no dispute here this is a mistake a fact case which of course qualified immunity protects officers from mistakes of law a mistake of fact and mistakes based on a mixture of one fact that's pierce of the callee and i also think it's important to remember that qualified immunity protects all but the plainly incompetent or of those who knowingly violate the law that's merely briggs in the united states supreme court why isn't it also a question of fact case because this is a matter about what officer christian opinion in order he recommended granting summary judgment to the defendants my clients opponents on all claims and then judge wells reversed that in part and accepted it in part what  presented with on that day and again we all we all now know that marty it was a completely innocent person there's no dispute of that now but at the time what was presented with was number one i  me step back the courts have a numerated three important factors for us to look at when we're looking at use of force and they are not exhaustive but i think it is important to point out because the courts have decided these are important enough to enumer the first is the severity of the crime at issue the second is whether or not the suspect poses a danger to the public or the officers and the third is whether or not the suspect is resisting or trying to evade by is there any question of fact here as far as the the large disparity in size between the police the officer that was holding him and this kid know your i mean the officer is the size he is in the the kid is the size he is i mean well they didn't they didn't change sizes since that day but at the time that was not the most artful way to phrase the question but at least  picture that's painted out for us here is it's a pretty big cop and it's a pretty small scrawny kid well you know how i would i mean he's not some giant copies maybe my size maybe a little but sure he's not a huge person it's not like it was le bron james happens is he flees now that is important you know what he did also cares or didn't come upon a scene with oh i get this ok i'm sorry but let's assume that there's no problem with him coming up to the kid who's got his arms wrapped around his mother in the parking lot i fully aware because i've read the record that he had that that was after he had run from the police i got that so let's assume that everything you say justifies the initial encounter that's not really what this case is about as i read it this case is about what the police officer did after that and whether the actions and the length of time was appropriate or inappropriate in this case so he allegedly slams him against the car allegedly a hot car in the summer for a period of fifteen minutes he had to speed that either i believe for the iraq to repeal fifteen minutes is where we can't dispute yes now in the meantime the mother and others are saying this is a this is a kid with special needs he's got down sooner me didn't do it and in there and they're trying to explain in the officers cursing at the crowd so you can't dispute that is right yes your honor i think it's a little more i think there's more to it more context to it but in terms of what you said generally yes i think we have to accept those things for the purpose of qualifying so what what case do you have that either says that that that action is appropriate or putting it in the converse way about clearly established what do you have that suggests that it was unclear whether he could slam of against a hot car and hold him there for fifteen minutes well you know it just seems so totally unnecessary under the context of the case in the way in which it's presented us well i think that the way you're looking at it your honor with all due respect is is not is with twenty twenty hindsight there at the time that this whole happened that he  surrendered well there's context to that and i included that in my brief my client admits that he did make an action that appeared like he was surrendering however in his experience and i'm familiar with the cases that are like this that a fleeing suspect sometimes will act if they're surrendering to try to get an officer off guard and then attempt to flee in fact on friday i think i got that but that doesn't mean you slam someone against the car it means you can still put handcuffs on you can still do what you need to do but you don't slam the person against the car there's no i don't see that well your honor what the happened there is in that moment where he may have started to surrender an officer chasm or didn't believe it is he made a split second judgment this was just an instantaneous thing this was adrenaline is pumping he believes he may be chasing someone who's armed and just robs somebody jury trial argument i think that might be how you could win the case in a jury from a jury but the say that this argument means he doesn't get to go to a jury sees hard for me to understand we're on an all these quotes i'm coming at you with from cases are all in the context of qualified immunity these are the things that that have to be no backup there and most of the one other officer showed up it's not unusual for people who know a suspect to say that that suspect is innocent there's no there's nothing pointed to in the law that i'm aware of that says someone who has a dis of committing a crime and if you look at officer kazimierz deposition he said he wasn't even aware that there was any sort of disability with wanted to after he released him we don't decide this on his deposition right i mean now you're not acknowledging the facts against you right i appreciate that your honor but i think it is important that we have to look at it from the officers perspective and i grant you that these facts do come out against my client in the twenty twenty hindsight but that's not what we look at at this qualified immunity stage we look at it from the perception of what the officer knew or recently could have known at the time let's let's stay with that approach we agree with that generally speaking we see police officers putting people up against cars by asking them or telling them to put their hands against the car and that's how they frisk them and then they put their hands behind their back when they're resisting then you oftentimes see force being applied t sometimes means their faces up on the hood of the car or whatever we see lots of those cases you've probably seen that but i'm trying to remember whether i've ever seen a case where somebody was was at least from what i can tell completely submissive that then got slammed up against the car so for i guess the first part of this question is are there any cases that you can think of the where that's happened factually now that i can recall offhand no now that may support or not so i understand that completely but what are we to do what are we to make of the fact that this guy goes right from grabbing the kid to slamming up against the car do not pass go and there don't seem to have been any objective reasons either at the time or in hindsight why he would have or should of done well your honor i'm going to just disagree i think there were objective reasons at the time we had somebody give me one reason why slams him against the car he had had just been fleeing there's no way to know what this person's going to do next there's did he believe that he was chasing what could be an armed robber there's no way to know if he may produce a weapon so the rule that you would have us follow is if you're fleeing and apprehended you can be slammed up against well i don't think it's that simple your honor i mean the courts need to take a reasonably particularized look at each case and not simply if you're feeling if you're feeling from say jaywalking that no not necessarily but this officer was searching for someone who had just committed armed robbery ok with a go so that's what this officer believes he's chasing at the time so not all crimes are equal that's what we punish them differently and that's why there's different levels of force that are appropriate if you believe there was some lesser crime that he was searching for somebody on that it probably isn't appropriate if you're going to use for that rebel force if you run there's no way to avoid being slammed up against a car even you submitted and you're not resisting because that's a ruth might be ruth and you might run again well i believe that the rule again your honor i think that that's too broad and i think in this case specific context what we're looking at is to the extent that there was a submission it was for some very brief period of time softer casmir was right behind want to tease but in addition you know you don't think running your mom in the parking lot wrapping your arms around her as a sign of submission at least you're no longer fleeing but you're no longer feeling but again you have to look at it from the officers point of view the officer doesn't know who this person is or what that person has done but he believes it's an armed robbery and i think that is  that distinguishes it from just any situation where you have someone who's fleeing and what level of force is appropriate he reasonably believed that it was the person who may have just committed this armed robbery with a gun and i think that's  been pointed out there were a number of family members surrounding grabbing at officer casmir screaming in both english and spanish understandably in hindsight we know why they were so concerned but there was another backup on scene only officer chris and was there and officer casimir didn't feel that the situation was in control until additional officers arrived and that's when he was finally able to he felt comfortable getting off of the car because he knew there were additional officers on scene in control  stand down actually would be all clear and calm until they had spoken to the witness nina kennedy who had initially called and said these guys return the wallet which is what gave them a lot of the information they were going on and in a kind of he confirmed this was not the person and therefore that's when they knew it was not the suspect in the robbery only when the eyewitness came and spoke to them and actually didn't speak to those officers spoke to officer carlos robles and another well be i have your on your full rebuttal and why don't we hear from was this case is posturing on summary judgment judge wells appropriately denied the defendant's motion for summary judgment based on a qualified immunity based on the existence of numerous issues of material fact the defendants would proport to accept many of those issues a fact because i think they recognize that to the extent they're up here arguing facts this court lacks jurisdiction even to entertain the qualified immunity appeal but that being the case there are certain facts such as one was slammed and tackled against the car that they acknowledged about the fact that it does seem like it was a pretty chaotic situation i mean so on you know on his side you have the fact it was a serious charge you do have them running and at the time the officer gets one artie's it does sound pretty chaotic i mean and some a great situation so i soon we have to give the officer a little room to work with the dispute about what the how large it was and how really around really they were so it seems to me one version of this has i think your opposing counsel even said that they were grabbing at the officer your version is they were just simply trying to explain to them loudly or otherwise this kid has special needs right well there's no question that so is there agreement on the facts as to what this crowd was doing or isn't there i would say no there's not agreement about what they were doing  there there's there's it was chaos i could see that was chaos because a lot of people and no one knew what was going on and there was anger being directed at the officer i think the chaos or unruly or brief writers characterizations of what was going on there not empirical facts you look at the the the testimony what we have are won or teases relatives trying to inform the police officers they've got the wrong guy this is my son he's got down syndrome he couldn't possibly have committed whatever you think he committed and you have nine a kennedy the apartment manager who's looking out the window at this scene unfolding before her eyes fifteen feet away and telling them no no no that's the wrong guy and she's the one who had made the report to the police dispatcher who on no fewer than three occasions informed these very police officers that this red shirt guy supposedly looking for is not the robber he's the guy who turned in the wallet so reasonable mistake i think not even informed three times by the dispatcher that became be on the lookout for someone with a the red shirt because he may have information about who the robber was because he's the one who turned in the wallet so armed with this information they chase down one or two simply because he's wearing running he's running right we all know that's right it of guilt or that's perceived as indicative of guilt i think that goes to the reasonable suspicion inquiry that's true and the judge did agree that that gave rise to reasonable suspicion but once once wanted been apprehended the question is what force was applied there and was that objectively reasonable if your honour's have already recognized you know once he had surrendered admittedly should he have been wrenched from his mother's embrace tackled and slammed against the car for and held there for fifteen minutes when he was being informed by numerous persons but your response to the friend's argument that sometimes people fake surrendering you know in other words that that roost at the officer to relax and then once the officers relaxed they march off again or worse polygon it was was one attempting to trick officer chasm or could that be decided as a matter of law did offer officer casper have a reasonable belief that one might try to further of aid and capture was that was their belief reasonable did it justify the excessive force t time the excessive force was administered by that time according to officer casper's own admission one had surrendered and was completely compliant and it's about the other officer i mean you know that seems like a slightly harder case from your perspective right i mean that person's you know he's working with somebody i would think most officers trust their colleagues to be doing the right thing in whatever force is being applied i guess i would wasn't present when he saw legibly slammed him up against the car as if he was present during at least some of the administration of excessive force the because the period of time after he was slammed up against a car right so you can't hold responsible for not preventing that now preventing the slamming of the tackling but preventing the continued pinning of want to the car if we're going to look for a minute at what happened after he's placed up against the car is there a suggestion in this record that people were trying to grab this kid away from the police officer or not there are references in the briefs to bystanders who were grabbing for juan and so forth so if we think about that for just a second if the bystanders are trying to grab this kid and drag him away from the police officer then why would that not in and of itself be the justification for continuing to hold him by virtue not if the record does show that they were trying to arrest him away from the police officer would that put this in a different light at least with respect to what happened after he is forced up against the car excessive force is an objective inquiry but how can it be objective leon reasonable to hold somebody up against a car if in fact it's true they were trying to drag them away first of all again there's no testimony of the record to suggest they're trying to drag him away and then so we will focus in on that i was i don't know if that's a hypothetical or if that's just simply a reflection of what the record shows because i'm less clear about that but you believe the record does not show any attempt to rest w a simple dichotomy emerges when i suspect actively resists arrest the police can use force the want to suspect is not resist they cannot that's what this case boils down to there is no evidence not suggestion in the record that one was resisting in any way the fact that he fled moments earlier does not justify what's happening to him right now in fact  in the case of koli versus coley versus lucas county court held that you can't use prior conduct to justify what you're now doing to a compliant detainee that was a case in which the officer had grown frustrated because in the past the same detainee had been had resisted told three times by the dispatcher that one was at most a witness so the flight doesn't justify anything that might have happened to him either at that time or at the crucial time when the excessive force was being administered because the question is was he resisting at that time earlier in the argument you agreed there was reasonable suspicion to chased after him and stop him i don't agree there's a reasonable suspicion i acknowledge that the judge found that way and granted the officer summary judgment on the reasonable suspicion inquiry you don't even think casmir had a right to chase him down i don't think he had a right to believe that he was a suspect in an armed robbery ok that was pretty easy well i mean he they had a right to stop him and question him this appeal is what happens after he stops because that's when the excessive force was administered the prior flight has nothing to justify that the force being administered and there's no reasonable mistake here for a number of reasons  this is most a witness not a suspect and everyone else was telling them you've got the wrong guy he's got a disability doesn't understand what you're saying they ignored him you can gauge the racial slurs and you know told  the two middle aged tall white gentleman who had turned in the wallet and that that description was relayed in detail to these officers who therefore should have known that they were looking for what when they found red shirt guy he wasn't going to be a suspect he was going to be a witness and you're welcome in the other reason why this is not a reasonable mistake and that they i say what are they supposed to be mistaken about expecting to hear that they were mistaken about that the kind of force necessary to apprehend the suspect in these circumstances and that would have been they would have found some support in the case law what they say is that we thought he was a suspect in an armed robbery he thought he was the robber as though you're allowed by the law to administer more force against the guilty suspect than you are against an innocent suspect the law is clear that both types of suspect should be treated equally the same and the fact that someone turns out to be guilty or innocent does not justify the use of excessive force which is the term and to be excessive objectively doesn't matter the guy turns out to be guilty or innocent confused by this red shirt guy comment and whatever the dispatcher did or did not tell this police officer are you saying that that occurred after he had caught up with ortiz and put him up against the car during the chase before the chase actually they received three separate dispatches before the chase was undertaken by officer cried so how do you paid attention he would have known who he was looking for once he caught red shirt guy was not a culprit but a witness at most so that ought to have informed his decision about what force was necessary to effect that arrest and do his further a suspect is posing the threat to the officers or anyone else and if he's not actively resisting or the law is clear that force cannot be used under those circumstances other than that minimal force that might be necessary to ensure that the suspect remains you know under arrest and doesn't flee did he what do you put the cuffs on this kid the record is unclear about that the dispatches are unclear about that what's clear from the dispatch log is that within four minutes of once having been apprehended it was reported that all ok calming down now they want to infer from that that by that average estimate given by by the witnesses here your argument is that he slammed him up against the car gets the handcuffs on him there's nothing wrong with actually coughing up poses or not has done it a professional nonviolent manner not so it's really the length of time that he was also further pressed up against the car after already being restrained in handcuffs that you're primarily focusing on here that's certainly part of the length of the detention was completely unnecessary by that time it should become absolutely clear to the officers they had the wrong guy not only were they being told that by everyone on the scene but they could tell what they looked at in the face this was a disabled diminutive youngster who cannot have possibly committed the crime that was being investigated and plus the the apartment manager who was worried they ultimately why would he not have committed the crime just because he's diminutive and disabled it enters into the evaluation of the totality of  kennedy whose word they ultimately accepted in releasing juan if they listened to or at that time why not listen to or initially when she was telling them that they have the wrong of your argument the answer thank you very much like you your hon she admits that she grabbed at one now in terms of what her intentions were there is no way officer casmir could know that at the time but i think it's reasonable for someone an officer to assume that they have a suspect in custody and somebody is grabbing at them that they may be doing it to pull them away from custody and she admits to that that is in the record there's no question about it almost pressed you can you guys can check that it's hardly any kind of goes if you need to be pointed out here number one there's a big distinction between when nina kennedy was one of the chorus of people screaming that this guy didn't do it versus when they have accepted and when it's accepted it's officer carlos robel this who interviews her and they only are able to accept her contention once they're able to verify that she was in fact t person who called nine one one to report this issue there was no way for officer cashmere to do that he would have had to disengage the suspect which she couldn't do and take the time to verify nina kennedy's identity there was no verification as to who she was it was once they were able to both verify that she was the initial caller then they could accept her word because there were some in dish of reliability prior to that officer casper had known dish possession of stolen property within a close up physical and temporal proximity of the theft for all we know the person returned it could return the wallet to somebody with all the cash missing and i believe and i'd have to check but i believe eventually the people who did return that wallet were the people who were arrested for the robbery so this idea that because the dispatcher said oh this red shirt guy was the one who returned the wallet therefore he couldn't be a suspect i think is completely wrong and i think that it is a mistake to assume as such and then i'd just like in my last forty seconds to remind the standard from mel levy breaks is that qualified immunity protects officers and alas they are plainly incompetent or knowingly violate the law and i think when we look at the totality of the circumstances here you can't say that officer kaz mere was plainly incompetent or knowingly violated the law and then very quickly as to the cursing and the alleged racial slurs obviously for qualified immunity purposes we can't dispute that in real life we do but to the extent they were alleged i believe they were all lads in terms of the racial slurs to officer and i believe officer casmir was only accused of cursing but never any racial slurs and i see my time is up if any has a question i don't think so so thanks to both of you for your help with briefs and oral argument we appreciate it thank you it's always an honor to be here thanks to both of you the case will be submitted