joining us through video conference for this argument session the court will hear four cases for argument this afternoon as listed on the calendar madam clerk would you please call the st case for here we go i think he's back apply it was a rapidly evolving police encounter the taser application to not incapacitate a plane in fact it was supposed to such that there was no bright line between resisting arrest and no longer resisting arrest if that belief was incorrect however the qualified immunity protects officer ramos from liability a nd ground for appeal is hirani is admission into evidence of the opinions of the vocational rehabilitation qualified immunity qualified immunity and i liked it just how like three quick points for the court regarding qualified immunity qualified immunity is a default position it applies unless there's a reason for it not to is not something an officer has to apply for is not something that nasa has to work to earn it applies lest the officer does something that takes him out of the m bit of qualified immunity was all contact except for the plainly a competent in those who knowingly violate the law so in order for an officer to come out of the protection of qualified immunity his conduct has a fall into one of those two qualified immunity is that there are no bright lines here to take himself out of out immediately and no officer has to cross a bright line this court is how the officers i'm not liable for transgressions in great areas they're liable for transgressions across the bright lines and this case was the very definition of a gray area taser did not a capacitate a plane or there was no clear indication that the plaintive who had been resisting arrest was no longer resisting arrest as he claims this court's twenty seven's he in decision in jose vs city of saint paul gives us real insight into this court's analysis of those gray areas in that case after initially resisting arrest and have played their decided to get on the ground he put one knee on the ground in one hand to the right now now his time in office a judge on his back and forth into the ground and he kind of violation of his th amendment rights this court found that qualified in the pot in that situation and held that a reasonable officer on the scene couldn't believe that jose was passively resistant even after he began to lower himself to the ground that's crucial because in this case in our case of the plate of claims that the taser should have stopped once he began to lower himself to the ground but this court found in the jose case that it was reasonable for an officer to use force after that point because the officer had no way of knowing whether it was passive resistance or whether it can it's surrender so this is kind of how we act or  entire twenty seconds is that correct that's correct your honor and so how do we factory and what i also understand the testimony to be that a single pull of the trigger would be five seconds so it could be divided into  suspect who is resisting arrest there is no law there's no rule there's no regulation that twenty seconds per se is excessive and the a circuit has never ruled on this issue and so in september of tw or in your addendum you exit or in a statement from judge center before the case was submitted the jury where the judge says i believe it is not clearly established under the law that there's a taser can be deployed after subject prison a seraph's and that's really what we're dealing with has a legal question an issue here but then he goes ahead and says all that being said my inclination is a submit the case to the jury in accordance with the instructions and he quotes or refers i think to probably number thirteen what's your understanding of that colloquy what was what was the judge submitting if if he believed it was not clear who established that there was a period of time to which he is or can be deployed after subject resists arrest you are not i don't know what judge finn was thinking other than west reflected in the record we had discussions about the application of qualified immunity we presented the same arguments to him that we're presenting to you and i included that that colloquy because it appeared that the judge was ready to follow the law so at some point i don't know why he chose not to but he did not follow the law and that is form the basis of this appeal i don't know why he submitted it to the jury what he was what is resident it was what's your understanding of instruction number thirteen which is the one  to resistance as the taser is deployed i think is the wording yes or you think that it was that designed to tell the jury to look at the entire period of taser deployment no sir i don't because the way the case was tried in the plane is theory of the case was that the plane it was that reasonable belief that rice masters was actively resisting arrest as the taser was discharged your verdict must be in favor of problems was that telling a jury that they needed to find active resistance throughout the entire twenty seconds in order to find her runnels was that the idea i don't think so your honor because he uses the phrase beginning or whether he was submitting the question whether masters resisted throughout the discharge who was undisputed that he resisted at the beginning then i don't know why the judge would not resisting during the last fifteen or at least at some point during the last fifteen i would have to say yes because that is what the plaintiff argued ok so then the question  hard immunity is whether the law was clearly established that an officer was forbidden to continue the taser deployment if the subject ceased resistance not quite i what is it then because there is no way for an officer to know in this circumstance that is that price master's head in his mind sees resistance in a normal taser situation when the bryce masters was no longer resisting and everything isn't that it isn't but isn't that a factual finding that the jury made i mean i think you can look at that videotape and after mister masters has already lain on the ground officer runnels continued to tase him i mean isn't that i mean couldn't a jury look at that and say it's clear it would be clear to any reasonable officer he was no longer resisting when he but i thought he was the tasing continued after he was on the ground i don't believe the tasing continued after he was on the ground if it was it was just for officer runners to kneel down testified in this case and none of them testified that the plaintive could not successfully complete college now didn't none of them testified that he couldn't perform certain job related tasks and none of them above average intelligence then i think i have a question about your argument and maybe i'm not quite understanding it because it seems like the kind of testimony that you're referring to whether he can complete college when he could do in a job that is what a book ational rehab expert would be testifying to based on the medical evidence but the way he presented the presented as is that the net of call doctor had to talk about whether he could go to college can you not clear that up for me sure which you part of the case law is medical doctors have to testify to what the patient physically can and cannot do and then base the what the doctors say the patient can or cannot do the vote we had experts didn't talk about the job prospects based on those limitations in this case there were no limitations testified to by the medical doctors at trial they didn't testify they bryce for it to be admissible for the vocational expert to say that oh i'm absolutely saying that because the neuropsychologist said that he could go to college he could complete college and so what's the medical personnel so that he can complete college you can have a vocational rehab person coming back and contradicting the medical by giving his opinion because he doesn't have the qualifications to do that and so and i understand this quite reviews that this report has discretion on the admission of expert testimony and i understand his court reviews that or an abuse of discretion standpoint but what's the medical personnel has said that or well there's no testimony that bryce massa's has any limitations and the vote we have expert comes back and says well i have these opinions some of which are contradictory to the medical testimony once that happens the court loses discretion to him that testimony is well two witness seemed to say well in my experience the doctors say he can go to college but in my experience qualified to say that then he needs a doctor to say that it would work out is there any circuit authority or just these district court opinions that been mentioned the district court opinion that we cited  deployment is the same reason he's not immune for throwing a hand cup to take me face st into the concrete driveway it is always a violation of the th amendment protections against unlawful seizures of the person to use her to this force when a detainee is not resisting and let's look at the record as both judgement lawyer judge cults of inquired on the facts of this case if you look at the video continuing to be deployed as runnels stands over rice masters crusted on the ground saying i told you so for a period of twelve seconds if you look at the forty during the taser discharge plaintiff complied with all commands given by runnels that is the basis for instruction thirteen which judge colton inquired about which defendant runnels continued the taser discharge unintentionally your verdict must be in favor of defendant runnels now i have a question about that instruction why is reasonable belief of the officer a jury reasonable officer is the legal issue and why was it was the jury or the submitted oath this was submitted in addition to the requirements set forth in the verdict rector which is number twelve which specifically talks about the continued deployment of the taser into plaintiff's chest st fifteen seconds tasers are a valuable non lethal method of force we're not trying to take those out of officer chance but what officers are trained and what ronald was taught in training by the manufacturer itself is that every five seconds of char whether by trigger pull or continue deployment has to be justified let me ask you question on instruction thirteen was there any objection by either side to thirteen and who tendered it if you did submit the verdict director number twelve however we did not object to the thirteen as we believed it to be at that time a statement that was necessary for a finding of punitive damage down the road because as a jury determined ronald's use of both the taser n the drop were intentional and malicious and the the irony of  a skinny seventeen year old kid is a violation of train even though it's enough if the proper mechanism of use utilizing the weapon would have been to use it in a drive stun and just applied the pain compliance technique reasonable officer would do in fact in the parade of his colleagues from the independence police department that testified at trial not one justified his use of the this application there was no expert on the use of force propounded by appellant runs at any time during the trial the only evidence at trial was middle one was not subject to qualified immunity so we have to buy both training and the a stamp clearly established precedent in the taser context we have to dissect the five  intervals of destruction because that to credibly important here because it's that continued and prolonged deployment of the taser that according to the manufacturers own train kills these officers when they are given this weapon continued and prolonged discharges are to be of voided and the reason there be to be avoided so your you and your department can avoid allegations of excessive force that's exactly what they're told so how can it not be clearly established that is not a violation of price match or th amendment rights what do you think of that statement by the district court that's in the and then to the brief where the judge says i believe it is not clearly establish under the law that there is a period of time for which a taser can be deployed after subject resists arrest you think that's correct or incorrect i think it's incorrect because once the resistance stops they'd need for four stops and you cannot rely on well we didn't know he could have continued resisting or he could have done something crazy jones has rejected that outright nonresistant misdemeanor who's being pulled over for two tinted windows that's the violation here too tinted windows is entitled to be free is used and resistance ceases and compliance begins the need for continued force is advocate and so when that when that happens otherwise if you beat a guy with a baton and he says ok i did not give him on the ground and then you just keep beat him and keep beating him that's that's a clear violation that is a clearly established constitutional right to be free of that kind of excessive force and that's exactly what we have here the tasering is no different from dropping the handcuff semi conscious young man face st into the pavement it was a group the jury found it to be and while running a state of mind is irrelevant again we looked at the objective reason officer standard what they found was not only was it not have to be taken as a given all the evidence and all the inferences from the evidence must bend toward rice masters verdict and that it be upheld and indeed there is a dearth of evidence from the defendant runnels other than his own self serving testimony that was clearly rejected in the face of the documented record in exhibits one hundred and sixty nine thousand one hundred and seventy one the real video recordings of this entire event when the jury heard the evidence and the deviations from training in the use of the stays or it became apparent i mean ronald knew better he pulled it and then he holster it he thought you know that's not probably a good idea all right we've seen it on the video but then prices like what did i do wrong what minister it until i teach you a lesson and that is the kind of conduct that aggravated this jury and that has led to the cultural climate which we find ourselves today and it is important that we recognize the jury's findings on each and every single issue embrace master's favor not just the elements of the unconscious of the th amendment violation is sept th an exhibit twelve but all of the out the jury had the trial court provided a window of opportunity far larger than the law requires to give the jury an opportunity to find in favor of defender runnels and it rejected that outright this is not a close call it was universally condemned by the public it was charged by the u s attorney both for the taser and the drop it was recognized and reynolds was that the u s attorney's charging decision is relevant to the civil case i'm saying that if there is objectively reasonable evidence of his conduct anywhere then why wouldn't a duty bound prosecutor not take that into account i was just asking whether what you're arguing is in the records because that's what i would address in such as an issue of law and whether or not the clearly established prong of q i applied is is one for the court then i think that's relevant on that inquiry but more specifically judge fitter it is multiple rulings on cue i both before during and after trial rejected qualified immunity the manufacturer of the tasers who specifically told runnels to avoid chest shots to avoid point blank deployments to avoid repeated poor longer continuous destructors reynolds ignored all of that training to do what he wanted to inflict a punishment on bryce master provides this court with guidance from the th circuit that was a twenty one second application after a five nd drive stun and that is the nearest thing that we can find factually but when it's security threat stops or runnels who was armed only with this cellphone camera and who was seated in his vehicle which even though it's the same legal analysis and even though it's the same legal principle is that much more horrific than continuing to tase a show man into cardiac arrest appeared in the arc with posturing and that's a sign of a significant significant brain injury and thanks to the care from doctor augustan bryce made a tremendous recovery but he was emotional lability he had difficulty with focus executive function that's what makes this so devastating to the master's family because bryce was a smart cookie he didn't have a that is exactly what mister dryly the day addressed in the boat rehab he took those medical findings and then said based on my experience i've treated to head injury patients i've treated people with these kinds of injuries i've tried to get them jobs and i try to get them education to train me into jobs that they can hopefully do and it doesn't work out well we didn't contend the price was completely disabled we only contended that he would not be able to make the kind of pursuit academically with the resulting increase in income stream ous in those this the jury was given both these events in a single package the jury deliberated and returned a unanimous collective verdict punitive aspect was like life submitted in a single fighting for the jury to parse out on the verdict form for each of the uses of force and because the jury reached a unified event i believe that the tasering end the drop in such close proximity or so it inexplicably enter klug that we should told the jury in closing your pupil ward must be reasonable in relation to the actual damages this was not right away jury this was not a jury who was giving one hundred million dollars on an economic loss case this was the physical injury and the real reprehensible conduct and in the absence of any  because the entirety of the punitive or even the five there could be no due process taking that serves as a punishment to it instead it is a message to our community and to the officers who protect us that this was wrong ok your time has expired but i have a question i'd like to ask you regarding doctor pryce in her testimony was asked you're not saying that he cannot go to college correct and she said correct i'm not saying that he cannot go to college though did recommend some accommodations at that time what's the basis for saying that a vocational expert can then opine that the plaintiff cannot go to college two things about that number one is that what doctor prices actual opinion was was not that he could not go to college it was that with a series of twelve accommodations that increased the probability of price master success in the college environment what doctor price did not have was d testifying neurologist testimony about the nature and extent of his brain damage mister grayling had that as well he had all of the medical evidence on the a raid of symptomol he's such a significant anoxic brain injury that it's a miracle this kid survived and so because of that he can take that medical finding and his interview with the patient his interview with the parents what are you experiencing what problems this price have and he came to the conclusion bryce is probably doing what he's capable of sweeping out arrowhead stadium and he said based on all of those factors in my experience in working with brain injured people that's how i reach my opinion and that is a don't here's the thing both rehab experts do not express medical care as mister dryly made it clear like what doctors do not have the requisite foundation to express boat rehab opinions take the medical findings you take a kid who by the medical findings has a good i q but who has executive function impairment abstract reasoning short term memory apparently he can't remember as monk testified he can't remember the slip is programmed in the driveway he can't find his keys he's on his th cell phone those are the kinds of problems that make it difficult if not impossible for bryce masters to pursue a college degree could he do it yeah i've seen ted talk from people who saw a state trooper medic brain injury to a completed college i've seen it complete advanced degrees but it's the nature and extent of the residual symptoms funny and if that's what the court is going to use as his basis then and if he was reasonable then is that up to the district court not the jury the district court to determine whether that have qualified immunity unless he doesn't take himself out of that and is up to the court is not a jury question it is up to the court to decide whether his reasonable ness was reasonably unreasonable and we  that it was not and we all know you cannot go ask just a quick question yes as i understand it you are not appealing to needs a jury instructions you're not appealing instruction thirteen or the verdict director is and so officer one of those has to be judged by what they stand in the back in september twenty four team not whatever the current tide is what current political and social attitudes may be about qualified immunity this used it was unconstitutional and we don't think it did