morning your honor please a court seated with my name is oscar moreau seated with me a counsel table is alexander hayes a member of my firm who is with me on the brief it's a pleasure and a privilege to be here this is an appeal from the district court from a denial qualified immunity and a handcuffing case at the trial level we cited gold versus city of miami the nolan case from the eleventh circuit and rodriguez versus pharaoh the trial court pages sixteen and seventeen of its order denied immunity it distinguish those cases that we cited either because they involved a minimalist force or because they involve the aggravation of a preexisting injury in addition judge maria no found i believe that page seventeen that because the plaintiffs happily in this case sustain that permanent injury that is a lack of sensation and because a permanent injury can constitute can conform an excessive force claim immunity would be denied was denied it is our position that and we respectfully submit that that ruling is incorrect because it's inconsistent with earlier rulings from this court specifically southerland case the lever's as ferraro and the condo case this court in those cases specifically stated that the extent of the injury is not determinative and i believe the extent it may be a factor in the reason most equation i certainly believe it is not determine the amount of of the immunities in this case more serious than levy for i remember leave well i wrote the opinion in levy ferrara what happened was the allegation was that a woman was driving a car here on biscayne boulevard a car stopped in front of her didn't move she became impatient hit the horn a couple of times it was a cop right next to her and he busted her for the hc ula violation the violation being hitting  account which we had to take is true at the time this was her account he pulled her out of the car physically handcuffed her on her back and at a time where there was no resistance whatsoever took her to the back of the police car and slammed her head against the trunk two or three times the charges were ultimately dropped she filed a civil rights to police officer and moved for summary judgment based on qualified immunity the district court said yes and we reversed and we said no that that was the gratuitous infliction of pain on someone who pose s no threat no risk no nothing but what was interesting about the case was unlike this one there was no evidence of serious substantial injury that's what you have here and yet we denied qualified immunity in that case your honor how does it levy ferraro help you win this case well it leaves us is forever your honor your honor indicated that the ex that simply because the paralegal for to us lee did not suffer a serious injury that that what you held that it was objective plea on reasonable force correct it was gratuitous and unreadable and therefore we didn't  we had no deep exploration of damages in the case and the court found that simply because he did not sustain a serious injury that did not convert what was objectively unreasonable force into reasonable but you will have to concede would you not that the extent of the in you really is relevant in the calculus i believe that the extent of the injury is a has an excessive force case one of the multitude of factors we look at is whether or not the plaintiff actually sustained substantial injury permanent injury serious injury as opposed to what we've characterized as de minimus right yes or this case it isn't de minimus that's there's no dispute about that right well the allegation in the complaint i suspect that's all i have to i have to deal with the allegation and we accept them as true the allegation is is that he has a serious injury but our position is a de minimus force was used during the h the the metal handcuffs that were originally all on his wrists and then he reminded hand call for five hours i just don't see any was under those the court has held that a police officer does not have to credit everything that a suspect a criminal defendant in the case to him at the scene the man was removed from the vehicle and placed on the hood and handcuffed i think there's a legitimate law enforcement  and then he reminds i had called for five hours that's what he alleges in his complaint yes which we have to accept as true on a motion to dismiss that's bothersome and my i understand your honor there's no allegation in the complaint that they hang because we're tighten and it was cited in that case it was only two hours he would talk about five hours yes i'm familiar with the hope case and the whole case talks about when a police officer would be a law enforcement agent would be on reasonable notice as to whether he or she is doing a constitutional violation there is no allegation in the complaint that my client was with the plaintiff in this case for five hours the united states supreme court as we cited in our brief and recently in the escondido case in the k did that qualified excessive force cases are very fact specific and  court should not take too much of a generalistic approach and pages ten through fifteen in our brief i think we found the handcuffing cases in the eleventh circuit and so i think the test for qualified immunity is looking at the cases from the florida supreme court court and the united states supreme court every handcuffing case that we located in the eleventh circuit either found that handcuffing was diminished force or found that there was no constitutional violation and the officers were not held liable in the sutherland case and as a condo case where there were similar complaints at the scene by the suspects who were arrested in sutherland it was when the police responded to to the swap shop the man was having an argument with a tow truck driver and the officer came over and told him to please get off the street he refused to do so he was arrested for disorderly conduct a minor offense three deputies participated in the arrest they pulled the first deputy pulled one of the arms back in obscenity so the individual the second deputy also pulled the other arm back only forcefully the man indicated that my arm is sick he complained he in fact blacked out at the scene for a short period of time a third deputy put his believe his knee in the man's back the man declined medical attention there at the scene i believe this court found that the use of force in that manner was de minimus and and i think that case supports our position in the said condo case which is a land landlord tenant dispute pulled forcibly back according to the opinion and upward he also had some prior injury he was forced down on the ground he was continuously complaining and despite the complaints one of the officers according to the facts in that case him down he was placed in the patrol car suffering more pain and in that case this court found that there was no constitutional violation so if the test is you know and i know that the test is you know a bright bright line taking all of those cases and the fact as we've imposed we've said clearly one we look at the nature and extent of the physical injuries sustained by the plaintiff that's an important factor certainly not the only one to determine whether it was if the injury is the minimum us that counts in the mix to we look at the severity of the crime itself for which the defendant was being detained or arrested three we look at the safety risk posed to the officers and others from the defendant for we look to whether the attempt at the pla was attempting to flee or other they the officers just taking the complaint is true as we all agree we're obliged at this stage to do don't they all caught in the opposite direction against qualified immunity one the injury alleged here is permanent serious and substantial to the nature of the offense was  speeding it's not of no consequence but it's certainly not like the kinds of serious violent crimes we see all the time in in this in this courtroom three there was not the slightest in n that the defendant posed any safety risk to the officers or that he posed any risk to others for there's no evidence that the defendant was attempting to flee or of aid the officers don't all of those factors weigh heavily in the opposite direction is just taken the pleading is true except in the truth may be far from what we have here but all of that being the case why isn't that enough to establish at least plausibly in the complaint that the plaintiff's rights to be free from excess of force the use of excessive force well violated and require you to go to the next step to discovering there's more is the error there and that would just marcus i agree that the ground factors favor of the plaintiff happily in this case but this was all not just the graham fact as i posited is well the nature and extent of the injury that is to say serious and permanent as opposed to de minimus yes which is a factor this court has fashioned and attributed great significance to i understand this court is also held that if you have a lawful arrest a lawful arrest permits a police officer to use force that is reasonable force to effectuate the arrest and in rodriguez versus for all the other cases this court has indicated that making a lawful arrest ok involves the use of force and sometimes injury well according to the four corners of the complaint he was objecting to the search they were in the middle of doing the traffic investigation they pulled him out of the car so i understand yes or but the court has found that you know executing a lawful arrest permits and offers an officer to use force and sometimes in a ressa true ation you know an arrest can result in injury this man was placed on the hood of the car and handcuffed it's not uncommon to rule metal handcuffs  place flex cuffs on someone because they're going to be transported you would get the metal handcuffs back to war as they belong to and he's used to be transported and he's placed in the vehicle for transport and i know he was complaining about that he complained about the handcuffs being being too tight and he complained that his circulation was was being cut off but the president from the court permits an officer not to credit everything that a defendant has is you know tells him at the scene the man was subsequently taken to the police also and of course rightly i think that's right the problem you arguably have is that the complaint in the allegation and there's some factual our got a support at the complaint says that that the way these plastic handcuffs were actually placed on his wrist was done in a particularly willful intentional and wanton and gratuitous kind of way that none of this was done for the purpose of securing him they were going to teach this guy a lesson he didn't do what they wanted him to do for a traffic stop and boy they were going to they were going to teach him the facts right that's basically what what they allege what that's the inference they would have a straw from what they allege so it was the gratuitous willful and wanton nature of it there's no question but that the law permits a law enforcement officer to secure a defendant with handcuffs behind his back and he can make them tight and that the law understands that some injury may actually arise from that the problem we have here perhaps is the nature and extent of the injuries are much greater and that the allegation is that it was oddly good to address like leafy ferraro there was no reason to take the woman to the back of the car and bang your head against the t you all of this was denied by the officer as ever having happened but we had to take on the front end of the case the claim as is true one of my missing here understood i would in response to your honor's concern this court in the mobley decision stated that the test is objective the reason was we don't go by subjective intent where the officer acted in good faith or bad faith etc so applying that objective test you know this man was handcuffed and he was arresting officer is irrelevant let me change the hypothetical yes or white cop arrests a black motorist for speeding and cops and takes him out in the woods and beside daylights out of him he says he does it because of race says no he says state of mind or motive intent only irrelevant to the inquiry of what he gets whether he gets qualified immunity  believe that there's some constitutional torts that would involve the intent of the office you know of the law understand why i just don't understand i mean it certainly is an objective standard i'm just suggesting to you the factual data would not be relevant my name is david frankel it's a pleasure to be here good morning i represent reuben sebastian the apple e in the case your honour's the apple e would submit to the court that the trial court's conclusion was correct but not for the reason stated by the court and so there's a pivot here the primary point that i raised on appeal is that while the child court reached the right decision it did so for the wrong reason this is a classic tipsy coachmen situation in effect heath that the court of hyde the wrong analysis to the law the court believed and looked at this that is if this was a valid arrest based on the fact that as justice as marcus has said you can arrest you can arrest for a traffic violation but as the supreme court has said when you don't arrest then you are within the constraints that are established in arrow and in rodriguez for the traffic the for the terms of a traffic investigation i disagree with just my esteemed counsel who i respect very much  characterization that this was during a traffic stop or investigation it wasn't officer grossman pulled over mr sebastian he went through the process of telling him you're going to be i'm going to cite you for speeding he said i want to check the tent on the front of the windows and it was at that point he said i can't see in the back which we allege that he can because the windows were open and you can purposely you can particularly see in the back there was no officer safety issue he just wanted to search the vehicle at that point my client said no i'm not going to let you that i'm not going to let you search the point is that at that point the investigation attendant with all the responsibilities and duties of the traffic investigation was complete at that point if he was not going to exercise his discretion in making the arrest he had to let mr sebastian go at that point and i've alleges yet officer grossman then called lieutenant or teased and i think it's also important i could i disputed one fact in my statement of the case which is there's no record that we can find of any police transmission he didn't randomly call for backup because he was worried that you know i need backup for this he it's got to be on his cell phone that he called particularly for this officer for lieutenant ortiz to come to the scene it was when lieutenant ortiz arrived that ortiz walked up to the front of the car and began taking the lead on this and i don't think that it's irrelevant that i've alleged that officer  well documented substantial history of thug like rights violations or petty little things on citizens under these kinds of circumstances so now i think just as a judge marcus i'm sorry was correct they were going to teach him a lesson you're not going to let us look in your car and i could tell you mr sebastian is the former military a security officer he's a guy who knows his rights show me a warrant at does that point that he pulled him out of the car my point being though any cause to go forward to try to anything that the police did after they completed after officer gross completed the traffic stop investigation any probable cause for arrest evaporated at that point the supreme court has said in knowles versus iowa stopping a motorist for speeding but issuing  rather than arresting him did not authorize the officer consistent with the fourth amendment can do to conduct a full search of the vehicle even though the officer had probable cause to make a custodial arrest the lower court did not see that distinction the lower court assume that because he had probable cause to make an arrest that would just carry through and that the officer could do it there was no violation that could be committed my point to this court is that everything that the officers did has to be looked at as a non as a arrest that was made without probable cause the first action they took was to drag him out of the car and then they put him over the hood and then they handcuffed him under these circumstances they were not intitled to use any force on mr sebastian he did more than just put him on he  and his name is edward lugo i believe that we're going to find out the dough is louis lugo that was called to the scene for whatever the purpose was so my argument to the court is that the  court applied the wrong law i was able to find courtney versus city of oklahoma state of oklahoma public safety the tenth circuit addressed this exact could not an objectively reasonable officer  off to the police department what would you call that i what i would say is i would say that was beyond the time that he was permitted what i'm saying is that the probable cause to make the arrest under city of law go vista which this bring you can with consistent with the fourth amendment make an arrest for a traffic violation that evaporated took him too long to arrest them that's right it's circumscribed how much time elapsed from the time they stopped him from speeding to the time they coughed him judge i don't want to say because i did not put it's not in the record there's nothing in the complaint about that you know in paragraph twenty i did allege that him the force they used was excessive i will address that i'm sorry that i mean ok i'm just i will address thing that that struck me as the more serious claim than that there was intervening period of time that vitiated the arrest well let me say this and i apologize because i think that i had i got confused on when i could cross appeal i felt that the court dismissal of the other counts where the officer was granted qualified immunity i felt all come together right ok i understand right but what i would suggest to the court plainly on that and i agree with where this court was going the the district the district court found that not only was it because of the severity of the injury the court said it was gratuitous right but the trouble here is  if you accept that the arrest was proper let's start with that premise you must accept that they're entitled to handcuff him yes and you must accept that in the course of a handcuffing some injury may arise we've said as much yes it's not antiseptic i've got a tough job when they stop a car there are risks that are just pour out of these these these stops from from  violations so they knew that they could stop them they knew they could come from and they knew they could come from even if it caused some minor abrasion or problem what clearly put them on notice here that what they were doing violated the fourth amendment what quarterly case put them on notice or is the argument i don't need a case because it was so obvious it was obvious that as it was in the alabama case that you couldn't change a guy the way it's published in ninety five degree weather or not let him go to the bathroom and just make him sit there door and leve slammed her head against the truck i don't believe it is a situation where there whether there is or is not a case similar to this which clearly defines it i think it comes under the rubric that even where the right has not been established an officer is still not entitled to qualified immunity where his or her conduct is a violation of constitutional rights which is a reasonable person would have known that's this court's decision in nolan versus isabel seven fed third twelve fifty three quoting harlow versus fitzgerald which is the supreme court i think this comes under that perspective because when you're talking about gratuitous  force that is not reasonably proportional to the need for the force that was used and that's what i think that the lower court was focusing  on the only other thing that i would say and i really want to emphasize to the court is that the inferences that we that are to be drawn here and i do think that it's relevant because it's the elephant or the gorilla in the room arrive at the scene randomly as a result of grossman calling for backup grossman called him specifically to come to the scene mr purcey mr sebastian continued to refuse to allow the search worked and then ortiz pulled him from the car and had forced over the hood of the patrol car he was bound in handcuffs so tight he immediately began to lose feeling in his hands and when he complained ortiz told him basically too bad if you don't like it i can make them tighter i think that on the spectrum of graham versus conner if you're looking for objective objective reason wellness we're on this end of it because we don't even slide down the continuum it was gratuitous and it was certainly not  reasonably proportional to the force that was needed at the time has the officer state of mind relevant i think it is i mean if you're going to be why and how well because if you're going to use the word gratuitous then what you're saying is you're  invading what the officer is trying to do at that point that he is doing is it appropriate to use the term in this context i think i know that we have well judge i think this whole thing was gratuitous in the sense that it was he used the handcuffs or he used the entire procedure as punishment too and i think he wanted mr sebastian to feel pain and everything else and i would add to that list as judge  says that he he can't they kept him in handcuffs also i would also add finally to that that off as i've alleged officer lieutenant ortiz ultimately contacted the state attorney's office and said don't bother we can throw this one away don't prosecute him i think that shows some consciousness you know prosecutor shows consciousness of guilt that another words we knew what we did we got our pound of flesh and we don't need him to go to trial and that shows somewhat of a a lack of genuine intent of why you arrest somebody in the first place let me ask you to help me again and how we come at this case we've posited three different ways when we're looking at a clearly established first we ask whether the plaintiff can point to a materially similar case decided by the supreme court the court of appeals or the highest court of the relevant state everybody agrees that's not what you have here right or a plain of can show that a broader clearly established principle should control the novel facts in the situation or finally we've posited as a third option demonstrating that the officers conduct was so far beyond the hazy border between excessive and acceptable force that the official had to know or put differently that any reasonably sentient officer would know he was violating the constitution even with our case law on point we said that in priester we said it in maddox we've said it a lot of times this is fall into the third of the second i think it certainly falls into the third i don't want to give up on the second although i wouldn't call these completely novel facts as the court has recognized lee versus ferraro they're not exactly the same but i think that the gist of what we're talking about here is when an officer is using his authority to for a reason that is not legitimate is gratuitous i think it does fall over away over the second but i certainly would think that it's that there this is if the court if i can prove what it is that i've alleged then we are within the third that this was a illegitimate it's beyond the hazy borders this is not an obvious clarity case but point out some factors to the court there was no bruising or no handcuffing there was no bleeding there were no broken bones this isn't a case where somebody got a handcuffed and then they twisted the handcuffs or they used the handcuffs as a weapon and then kind of pull the guy's arm and sort of chicken wing them to cause him something like that was nothing like that it was handcuffs and he was cuffed too tightly and i think based on the cases that we cited did you ever state a claim for excessive force using hookups and if so when if not here well my client is held to know what the law is and looking at the cases that exist in the eleventh circuit i don't think he was on notice that what he did by handcuffing this person with the metal with a metal cause  was a violation of clearly established law and i think that's the problem the problem in this case he he was handcuffed in cold versus city miami the man complained that you know the man had abrasions and  he argues that whether there is a case on point or not whether the facts or novel or not this conduct was so far beyond the hazy border between excessive than acceptable that any reasonable officer would have to know he couldn't do what that's what he did here that this was done designed and intended to gratuitously inflict pain and in fact succeeded in causing permanent injury i just agree with the proposition that this was an obvious clarity case i disagree with his argument i think this was a man who had a weapon in the car by the way i don't know i'm just asking whether the allegation is sufficient i mean you may be dead right about all of that right but that's not what controls  this point is it i think mobley controls and it's an objective test i think that's you know if i look at mobley the subjective intent of the officer which is my colleague's argument is not a factor in the consideration based on mobley and wasn't the gratuitous infliction of pain in the levy ferraro relevant to the court in its decision it wasn't that she walked away with a serious head injury and leave her says her what happened is after she was secured in the trunk of the car according to the allegations her face to slam down into the correct this case is different because what they did is handcuffed him ok what they did and according to allegation twenty five he was not slammed on the hood of the car i understand that yes he was c and he complained about pain but the case to say you don't have to credit everything that someone says in the other cases you know have people complaining about extreme pain people passing out in black and blacking out so based on that i don't think there's a violation of clearly  based on the current guidance i think there is you know i think it's reasonable that before you get to obvious clarity there should be further guidance from this court and that's you know in addition to just one other thing i wanted to point out to the court you know what judge marino ruled was because this person had a permanent injury and that can support an excessive force claim and immunity was denied in the injuries not to turn it similar to what happened in the j b case were judged to be and it was on j b was a case which is in our brief involving the sheriff who is running kind of like the scared straight program where they bring young teenagers that are having brushes with the law to this jail facility that put them in a jumpsuit they you know they they try to teach them hate stay out of it you don't want to end up here the sheriff in that case was talking to the young man who had created some problems with the people that were running the jail he was had thrown some stuff around the sheriff goes over to talk to him try to give him some advice and the she teenager was going right as spit on him so the sheriff stands does a choke hold which you know does a choke hold on him which resulted in a bruise that was a photograph according to the facts of the case a bruise on his neck the trial judge in that case found that because it was a d injury than therefore only de minimus force was used this court said that that was the incorrect analysis and that's similar to the analysis that occurred at page sixteen and seventeen you know in the trial court's order in this case so i really do believe that that there is room for further guidance from the court in the qualified immunity scenario i think qualified immunity is especially critical to not have this doctor would you know in the handcuffing situation protect officers would cause a chilling effect which would be dangerous and unless the court has additional questions that is my position in this matter i appreciate your time thank you very much and this court will be in recess until nine am tomorrow morning