please the court mary mass around on behalf of the defendant appellants the genesee county deputies i'd like to reserve four minutes for rebuttal this morning we urge the court to reverse the district court's denial of the defendant's motion for summary judgment and there are two issues before the court one relating to excessive force the other relating to a fourth amendment malicious prosecution claim they key points on which we believe a reversal is in order are they on the force used here was reasonable in light of the continued active physical resistance which included biting a me how in your view the use of force in the takedown was appropriate they use of force in the takedown was appropriate because jennings had been instructed to keep his hands on the wall and be looking forward the deputy and even the plaintiff concedes that he took his hand off be it the plaintiff wants to give an explanation while he was startled by the pat down in his scratch area but the explanation really does and my concern ik i guess is if we're looking at a question of excessive force which pretty generally means you're looking at some relative things here if you watch the video you can discern that his hand comes down somewhat and you can discern that he turns his head but that is sufficient to require one then two then three really big guys to take him down to the floor i mean he was kind of scrawny fellow the district court made that point about the relative size but keep in mind and this is apparent from the video it was one two three guys it was more than that trying to get control of him no no i'm not talking about after the take ok i'm just trying to figure out from watching that video how a guy has been instructed to put his hands on the wall and maybe was instructed to keep his head facing forward and his forehead first virtually against the wall i don't know because you can't hear that on the video but he was instructed to put his hands on the wall that video doesn't show much movement at all on his part before he is just violently taken to the floor and i'm just trying to figure out why is that degree of force at that point looking at that segment why is that appropriate given the deputy's understanding of who he was and the crimes that they thought he had been involved in when he was arrested what crimes did they think he'd been in they thought he had been involved in shooting a weapon after a fight suggesting him to have been quite file and and they thought he was they could see that he was high they understood from information that the police understood from information or thought that he might have been i'm cocaine which of course is associated with barry and tense reactivity and alcohol as well so we get to look at know we have a video but there were things that occurred before that so when we're talking about the police thought do we get to look at the fact that the police also said that he wasn't  violent i mean he the they said he was uncooperative but they it's also clear from the entirety of that part of the record that the problem started only during the booking process so up until then they hadn't had in the that the record reflects any particular problem with the guy and then all of sudden he moves one hand in his face and well i guess i would say two things  the first is the fact that somebody is moving along and is is compliant at one point and then becomes non compliant and that person is thought to have been involved in grief fight and shooting in whatever is in enough to suggest that the officers are going to be on their extra guard they're viewing this as a person who is capable of violence and in addition to that once somebody in gauge is in some behavior which makes the officers think there's a problem the reaction is very speedy you couldn't call it violent in the sense of being forceful and quick and that's for a reason the reason is because they are trained as they must be to immediately take control of the situation otherwise it can get further out of hand people can be injured other problems arise and so when you're in a jail setting that it seems to me is reasonable i understand the impetus for the questioning and i know that was troubling to the district court because the real problem i'm having here is looking at the video looking at the video and at that part of the video i'm not talking about but what happened we're talking about that part of whether they're in whether it is really the case of there's no factual issue about the defendant's conduct and in his actions sufficient to say a jury gets to decide whether that degree of force was excessive in our view they answer to that is no expert for the reason for the court to understand and which was not here to bill on is grounds for reversal we believe there should be a reversal as to all of the defendants we believe given the potential for violence and the nine compliance with the potential for violence was that a neighbor said he was involved in shots but in any arguable excessive force began the think it seems to me a couple of things are really important about that the first is when you take someone into custody who has engaged in it's far as you know erratic violent activity shooting a weapon having a fight going to a neighbor's house demanding to be let in things like that it is completely reasonable even if the person has been compliant to be on your extra guard if the person starts to be non compliant and that's particularly true with someone who is intoxicated whether it's alcohol you know course there fact question we have no jurisdiction over the skies and it's hard to see one could view this video as the officer scott having been excessive at the very beginning at the point when he momentarily removed to stay in and looked around and then you have to view everything else that happened afterwards in light of that and the whole thing seems rather extreme on the part of the officers and if i could think it's rather extreme and every reasonable juror could think it's rather extra  wise it's pretty hard to conclude that there are no fact questions in this case well the facts are clear the legal conclusions that you've drawn from the attack on didn't think they were clear because he thought there were tabs when the officers had moved in such a way to shield the view of what happened on the video let me address the question about the timing and what happened after let's assume the court does not agree with my position although i s with respect to the initial takedown which this court has held on more than one occasions for verbal disagreement noncompliance passive an active resistance is appropriate in which is what the officers did but if this thing work i don't think my questions were directed to was a takedown appropriate my questions are directed to is there genuine issue with regard to the force used to accomplish the takedown under the circumstances which caused the officers to take him down to begin it seems to me that the take down when you call it a takedown you're talking about the force that is the fact that individuals are grabbing hold of someone and moving that person to the floor that's a takedown and so the question is whether the takedown was appropriate in light of his removing a hand and turning his head even if the court doesn't agree with respect to that and we believe it was appropriate then you have other officers who come into the room seeing a struggle and who come to the assistance and there's a whole stream of activity which even the district court admits involves active resistance repeated resistance nine minutes of resistance at this point resistance at that point and those officers are entitled to come to the aid of the officer it's not they cannot be held liable for coming into a room we're  impetus for this altercation was appropriate in the first two officers part there in title to accept that and to act appropriately thank you you thank  know that on behalf of william jennings like to start by pointing out to the court that the arresting officer did not call ahead to warn about alleged violence on behalf of mr jennings he did not transmitted any of the information regarding the alleged shots it was a double hearsay statement from someone a neighbor none of that information was conveyed to the deputy fuller or ken amar who were booking mr jennings so they did not have that information when they took him to the ground they did not have any information that he was intoxicated by cocaine in fact multiple medical tests prove that he was not so was intoxicated he was he had a point one two alcohol level yes i want to be ale and he was arrested for o u i in the case law is very clear that where there contested facts in a qualified immunity appeal the defendants or the appellant's part me are supposed to accept the facts in the light most favorable to the nonmoving party in this case point of jennings their facts in the brief contradict the video and put their spin on the video at every single turn for example the defendants argue that mr jennings took both hands off the wall and turned violently towards  the officer for while he was being frisked the video does not show that for example they say that mr jennings kicked them while he was on the ground the video does not show that the officers were standing on his legs in the initial takedown the video the they say that mr jennings launched himself into the wall face first the video shows the officers picking up the handcuffed mr jennings and propelling him into the wall face first the video shows they they say that they fell mr jennings the video shows an officer putting his hand on the mr jennings chen pushing through a doorway and falling with his full two hundred seventy pounds and his head when he comes up you can see his face and i are bleeding and swollen rivers who are sued they did that is correct your honor but they also knew that when he came in the jail cell he sat on the bench for quite a period of time didn't obey all directions when he was told to stand up he did when he was told to put his hands on the ball he did what is told to spread its legs he did he has been a very vulnerable position his legs are spread his hands are out he's in no position to attack a deputy and as you've noted there's a huge disparity in the size of the officer that was first in him is two hundred seventy pounds mr jennings is one hundred forty in jennings was being handcuffed during the initial takedown it's not clear from the video if he was handcuffed or not there at the time as pepper sprayed there were two officers kneeling on him an officer standing on his leg so i would argue i believe that mr jennings was restrained at that point he's locked in a jail there's no use for the pepper spray the tasering occurred after mr jennings was taken in the safety self he was laying motionless face down on the ground handcuffed with all these deputies running in one holding him on the ground the lieutenant  es decided to put him in a safety chair or restrained her part me and he ordered the deputies to take mr jennings was fully restrained at this point in a cell handcuffed face down and they yanked him up in  jennings mouth and no mr jennings has emphysema had recently been pepper sprayed and took him out in three minutes here and he's holding him and you can see him struggle to breathe his legs kick in that's when deputy fuller said he was bit he also said that they were spit that he was spitting at the time one of the deputy said he was spitting because he was pepper sprayed that's one of the side effects another deputy said he's intentionally spitting at them but that is why the mask came on the thing over  pepper sprayed had emphysema they strapped him face down and left him three hours without any treatment in a cell and you can see that if you watch the video the court has it he struggles to breathe he should be testified he chewed through the the mesh and broke his teeth in lost consciousness at one point because he couldn't breathe this is they're lucky they didn't kill mr jennings during this they piled on him they had almost a thousand pounds of man laying on top of him when he was tasered well he was handcuffed and judge co certified this appeal as frivolous when he denied the motion for stay and he said as you noted there's there's a factual dispute i want to get back to what judge given said that these few facts are disputed there's just no jurisdiction for this case to be here the defense of argued the facts and every turn now with regard to whether the force was excess of this circuit has a case called treadway which says that when a person has been restrained any use of force against them  plainly excessive now mr jennings was restrained on the floor in the in the report writing room and handcuffed at that point any force that comes after that is plainly excessive  officers so your position would be that a handcuffed person can't put up sufficient fight that further restraint would be necessary no that's not not what i'm arguing your honor ok i'll clarify  if i if i implied that what i'm saying is that at that point mr jennings has been pepper sprayed handcuffed in his face down he's in the control of the deputies they pick him up and by his arms right back by his wrists in bend as arms up he suffered torn rotator cuff it as a result of this beating by the way and propelled him into the wall face first he suffered facial fractures on the side of the face that hit the wall now i believe that's plainly excessive force where he's held on the ground he's surrounded by deputies he's handcuffed and it's just been pepper sprayed in he that that point is clearly under control there is no justification for picking him up in the video is relatively clear that they picked him up  of the case is that he was launched himself into the wall i that's clearly a contested fact for the jury and it's it's for the purpose of this motion the purpose of this appeal should be taking the facts in light most favorable to mr jennings so at that point then after he's done that they have my hand cuffed two deputies hold his arms in the third deputy bends his head back and then they push him through the door and through him on the floor of the fallen top of him that's plainly excessive to he's handcuffed held by two deputies these one hundred forty pound man then they break them up again they put him in a safety cell lay him down he lays there virtually motionless obeying all commands for a minute it's very clear in the video he does not do anything except lay there and then they pick him up bend his arms back put their hand over of him put him in the cell again try to put him into this restraint chair and at that point his legs kick out he didn't kick any deputies his legs just flailed and i submit that if you've been pepper sprayed in someone's holding your hand over your mouth and nose that that is an involuntary reaction at a minimum and it's certainly reasonable under the circumstances so getting back to this cox three treadway what i was trying to argue is that when they picked him up and threw him against the wall that's plainly excessive force there's no justification for it he's not posing a threat and he's under their control now with regard to the upper s administered well he was on the ground hands or behind his back to death he's on top of them saying as likes i submit that he's restrained at that point too there's no you need to use or it's really to a just force it's done to punish him likewise th he's on the ground there's a bunch of people milling on him he's covered in pepper spray and they taser him there's there's a policy against tasering individuals at the genesee county jail who have been pepper sprayed because they can catch on fire in the tent knew that he did it anyways restraint beds are lawful yes under certain circumstances however it is plainly excessive force where you strap someone down who's been pepper sprayed without providing any first aid to administer to alleviating the effects of the pepper spray someone has told you he is emphysema then cover him with the mask and you can see them kneeling on him and ratcheting it down they put it down or if they are evidence that he there's evidence that he held out he has emphysema so during the right up against it and then he has a mask on top of it and then he's strapped in he struggled to breathe and he testified he lost consciousness as a result of his struggle breathing struggle breathing as emphysema so they're supposed to their their policy once again which is not a they're supposed to check on people that are in the restraint beds they're also supposed to administer first aid wash off the pepper spray or put cooler on it they did nothing they just put them in the cell and left them there for three hours is there a policy i mean i realize that we're not here on policy but i also realize that that can be indicative of the understanding on the part of the officers that what they're doing is perhaps a violation of constitutional rights is there a policy with regard to leaving people face down on one of those beds there there was not your honor there's a policy the policy just talks about monitoring them the bed is actually made to be put face down in i guess the if the if a bed becomes necessary then most likely it's safer for the officers to put a person face down i don't think that it i don't think it's one of the other think it's designed to be put face down based down and had guts behind her he was handcuffed face down behind him  no actually pardon me i misspoke his hands cuffs are taken off in his hands or strapped to the bed yes so they did on handcuff him after his body was face down and he was strapped in so he's in a he's in a basically a four restraint face down and you can see in the video he struggles when he's put in the room is for also really can see his head moving around in these motionless for a while and then ultimately after about three hours a team of officers comes in and he's removed from that without incident and get some medical care at that time he didn't get any medical care before he was put face down so do you have any questions about the malicious cases right now both courts which i think is highly unusual and we've filed a motion to strike that out but i thought it was important for the court to know that that is pending in both courts and i've never seen that before so in closing i'd ask that you would affirm judge jones a citizen or in the alternative find that the court lacks jurisdiction and dismiss the appeal thank you with respect to the disparity in size and the i'm going resistance it is very clear that the fact that jennings was not physically large did not impede him from continuing to resist and requiring the involvement of multiple deputies one of the deputies testified he had never in his years and the force then in a circumstance where multiple officers were unable to restrain a non compliant prisoner in a restraint chair which would have been preferable had they been able to do it in the video clearly reveals that we went through the video point  point in our reply brief and i think that should be of some assistance to the court in looking at the video we are not here questioning facts but we are here within the court's jurisdiction under both kathy harris and the general rules of jurisdiction we have accepted the plaintiff's facts but keep in mind that the plaintiff says he has no memory after being pepper sprayed so his testimony with respect to the initial incident would be relevant but all of these assertions about what he said or what he was feeling or what he was thinking or whatever after have no basis in the record because by his own testimony he has no memory and so what we're left with is the video which we think is clear and that's for the court to review and and and determine from your perspective and the testimony of the various officers which is consistent and which says this was an inmate who continued to resist shout flail out now in the lower court and again today plaintiff wants to say well he was struggling to breathe and his flailing legs were inadvertent the officers do not know and there's no law that i'm aware of in this circuit or any other that holds an officer re sponsible for knowing if someone's arm is hitting out in the leg is flailing out in their spitting that that prisoners motive was a good one and therefore they're not entitled to respond to put him on that restraining bed with a hood over to that's exactly true and the officers were consistent in saying we tried to restrain him using relatively minor kinds of force we tried to handcuff him he continued to struggle we tried then to use the pepper spray he continued to struggle we tried then to use the taser it had no effect he continued to struggle this is the inmate or prisoner who is resisting actively forcefully to the degree that all of these officers are unable to get him in a restraint chair and the video confirms that so we have the officers testimony we have the video we have his assertion that he doesn't remember after the pepper spray it seems to me that there was a back question this to his memory right yes judge cohen had a different view of the case i think that's clear i also want to just say with respect to the medical records and the medical evidence and this is in the record first of all whatever medical evidence there is that's not really relevant about what the officers did in what he did it's after the fact evidence second of all there's a question about the medical evidence some of the medical evidence there was a test to determine fractures that showed no fractures the day after the incident then there was a later medical test that did not come from the subpoena from the medical records that showed a minor fracture and that's somewhat inexplicable but i wanted to draw the court's attention to that i don't think the medical records are relevant in any case i'm happy to answer questions about think thank you counsel thank you