we'll be hearing two more cases this morning and the next one is lynch versus board of county commissioners number eight hundred seventy two zero two zero council you may proceed good morning may it please the court my name is christopher can't face is mitchell garrett with me at counsel table and we represent the appellant's the state of cody lynch as well as dave and holly lance who are the administrators of the estate of the seaton and respectively cody lynch's father and widow today we request that the court reverse the summary judgment orders that were entered by the  case for the reasons set forth in our brief on all claims except for the boss claim which we expressly abandon due to the precedent that's come out since the judge pains ruling today i want to address two points in support of our request for reversal and then we'll rely on our brief for the other arguments your honour's we believe judgment should be reversed for the following reasons first the  dramatic departure from the rule fifty six standard for summary judgment most notably with respect to the issue of whether or not the code which was effectively restrained at any point prior to his death death and also with respect to the question of whether mr lynch posed any threat to the officers or anyone else during the post restraint period the other issue that we  believe which we believe summary judgment should be reversed is the failure of the summary judgment orders to apply that andersen standard that's necessary for determining whether there was a violation of clearly established law and verbatim the findings of fact and conclusions of law that were submitted by apple lees now admit that there's nothing inherently wrong with a trial court adopting a party's findings and conclusions in their entirety as long as they've been carefully and individually considered but in the case like we have here when there are clear indications that the court did not conduct an independent evaluation of the facts and evidence in the legal authorities the court's wholesale adoption of a proposed findings of fact inclusions logging to be scrutinized more closely counsel could i just as for you as to your claims against the individual officers is really we have three individual officers left correct as correct why aren't we required in this case in the circumstance of this case to assess each individual's conduct on its own rather than treating them as if they can be liable as a group your honor the answer that question i think lies in the book or decision that you offered where it talks about it really up to the court candidly the court can look at the individual liability separately or as the booker decision stated it can aggregate the issue  when looking at the we're looking at qualified immunity well you're right on i am familiar with booker but it's i guess my question is are there circumstances when a court is required to desegregate and why wouldn't that be the case here i don't i don't to be candid with you with your honor i don't know if there are circumstances where the court is absolutely required to desegregate its review of the  liability of the individual officers what i can represent and do submit to the court is that in this case even though there was one to two officers that placed pressure on mr lynch is back in another one hell of the chains and and two of them hooked up the transport they acted in concert and that's why i think they shouldn't be independently evaluated in this case everybody was there at the scene everybody was in a relatively confined space everybody could see what everyone else was doing and so you've got the failure to intervene aspect that comes into it and i think that's kind of why you have to look at the issue together again referencing the booker decision that you offered  it talks about even if a single deputy's use of force was not excessive a law enforcement official who fails to intervene to prevent another law enforcement officials use of excessive force may be liable under nine hundred eighty three so what we've got to do is you  you have to look at what all the officers are doing in order to determine each each one's liability so it just makes more sense it seems like it would be more judicially economical to address them together your honor does that answer your question why don't you go ahead that judge thank you for that as i was saying there's nothing inherently wrong with the trial court adopting a party's finding and conclusions of law in this case however we've got a situation where the summary judgment order has a verbatim adoption of an advocate judge or one of the summary judgment orders that the apple e's submitted to the trial court and that the trial court signed off on in this order it cites to the case of escapade bender in the side on that given was six hundred  thirty seven seventy and the order that judge payne signed off on says that the escobedo case stands for the proposition that quote partially restraint or not someone who is attempting to commit felonies felony battery against law enforcement officials in experiencing some success could certainly be said to pose an immediate threat to the safety of the officers in quote i would submit to the court no where in the cited case th the case is that does that coded language appear and likewise nowhere in the graham case that's that that's referenced by the escobedo case is that language appear well counsel can you help me understand though what this argument goes to i mean essentially is there something independent that you want to do based on the fact that you're saying the district court adopted submitted materials it is there's something independent or does that just go to the merits of the way i think with us speaks to your honor is it least for me it kind of answers the question as to why why could there be so many disputed facts and all this evidence that was summarily disregard it and i wanted to know why that would be and it was only upon looking at the i guess haphazard reliance on apple e's take on the legal authorities realize that maybe the district court did not conduct a sufficient review of the material facts as presented by the parties that it was that it was one sided or that it just didn't conduct the necessary review of the record but ultimately isn't your argument that we review summary judgment no we look at the record that was presented to the district court and this court determines whether there is a genuine issue of material fact that is true your honor that's that's the task at hand and what i'm interested in on a particular question is what moment was mr lynch subdued i'm glad you raised that your honor because i it seems like you give us a multiple choice on that and let's see if we can just pin though now no i don't believe there's multiple choice was he subdued when he was handcuffed yes your honor ok but you also say he was subdued when the leg restraints were placed and when the waist belt was attached was he subdued at every one of those moments well  i'll rely on what the finance experts said they said that he was subdued mr lynch was subdued i'm sorry restrained at the point he was handcuffed by mr sam and then officers didn't walk at approach the said that's the point in time whenever the situation was no longer rapidly evolving that's what the finance expert said and then later with respect to the second point when he had the encouraging bystanders to intervene he's struggling he's resisting they put the handcuffs on but his legs are still free why is he not still a potential threat at that point ok two points on that your honor first i think it's important to look at the fact that all of the things that happened before apple didn't walk out arrived we can't even consider that because that goes that that looks twenty twenty in hindsight in mean we can pick that up from the video but yes but does it really does it matter for your argument whether he was restrained before the leg restraints were imposed no your honor ok here's here's the reason why is because at that point one thing that the summary judgment orders don't address the facts that we presented to the court do it dress is the timing if we call the affix ation of the leg restrain got on his feet then the officers have to be concerned even after he had leg irons on that he could get to his feet and they fall down hit his head on a rock try to hop into the road he'd already been end of the road absolutely not your honor the clear the testimony the officers in this case clearly state that the point that the leg irons were fixed he could not move his feet and kick to get loose or injure someone that was the direct quote from apple's testimony that the apple testified we had his legs at that point pretty well secured so i wasn't too concerned about him keeping somebody knocking him down or anything with his legs and officer wildcat testified that once that the apple applied the leg irons mr lance no longer quote posed a danger to the public in quote nor quote an immediate threat to the also what should the officers  done in your view what went once especially once the leg irons were applied then officer denny siv released the pressure from mr lynch's torso because that's what caused him to expire based on the medical examiner's report i'll sit down for right now i counsel i need to ask you what the qualified immunity issue what's your best case for clearly established law your honor the best case for clearly established law is not even addressed in the summary judgment orders weigel the the pressure on somebody back after they've been restrained ok booker which adopts that aspect of wigle and also talks about the need to rapidly perform c p r and then also cruise which is the application of the hog tie technique on  suspect who is suspected to be of a diminished capacity those are the controlling authorities against which the officers conduct needs to be measured and i just point out that the summary judgment orders don't even address weigel at all even though we raised it they only address cruz or the the poor in summary judgment order only addresses crews in terms of saying this is the definition of a hog tie and they don't address book or so i think that by bypassing the standard there can't even be an anderson analysis by the district court thank you ron thank you as well as deputy director apple your honors as you've pointed out we have a video in this case that tells us the tale of what happened that video which was taken by the appellant themselves shows us a man who was constantly struggling just one a jury should get to decide you're going to respectfully that's not the case you pointed it out what we have to do here today is decide was mr lynch ever affectively subdued when the officers were applying non lethal force on him about an officer who had dealt with the resisting subject who stopped resisting he was restrained and he had quit resisting to so much so that the officer went back to his car and warmed his hands officers denny and wildcat never believed that this man was restrained to the point that they could just get up and walk away well once once the handcuffs were on and once the leg restraints were on how could he have posed a threat to the officer yes or in the video you can see i've watched the video and in the video you can see with his hands cuffed in his legs restrained he is bucking these officers off of i understand but how is he a threat to the officers he may be he may be struggling but is he actually a happen how do you envision that the officers could have been injured with him on the ground in the fashion he jumps to his feet and what he has elbows he's throwing he's also constantly inciting violence from his family members who outnumber the officers on the scene who him in the head dad knock him off of me grab a hammer out of my truck and get him dad the appellant's themselves on the video are saying stop resisting cody they see that he is resisting these i don't know if if the bystanders aren't aren't responding to all of this again where's the threat to the office that that to hindsight and house no it's not to it's the question we have to ask could a reasonable jury find that  there was excessive force here and part of that question is whether the officers really needed to be kneeling on his back when he's got handcuffs and leg restraints on yes your honor if you look at all three of the graham factors all three weigh in favor of and ok let's let's look at the graham factors because that's what exactly what i've been asking you about the second graham factor is whether he posed a danger to the officers at that point and the point we're talking about is when he's handcuffed and his legs are chained together now he may have been a difficult person to get into the car that's true but is that a threat to the officers you're in or it could be it then that's what they had to decide there on the side of the road in rural oklahoma late at night when this man is repeatedly saying you're not going to take me i'm not going to go and he is bucking and throwing his elbows in around he posed a risk of i understand that argument then let's go to graham factor number three how was he actively resisting arrest or attempting to evade arrest by flight he not going anywhere once he's handcuffed and his legs are are chained together based on the video a reasonable officer in that situation could perceive h doing such that he can get away under those circumstances that he could at least get up and attack them and no further third i'm asking about the third gram factor how does that support your senator graham factor also says whether  reaching for the gun as the state of us could be you know pointed out by the appellant that even someone has restrained but is trying to batter an officer and is having some success at that it can be said that it's reasonable for those officers to believe that he's posing a risk of harm this man had never been pointed out that wasn't my question if he if he's handcuffed how is he going to get the officer's gun i understand it could be difficult but the fact is that the reason officer in that circumstance is feeling i suspect he's grabbing at his gun has reason to believe that they need to use force to affect this arrest and to get him up and into the car and to the jail where he belongs what if the officer had just been in front of him and put his hands on his shoulders and so he's still squirming at this bothersome he's obviously a troublesome person to encounter that evening but my concern as he really didn't need to lie on his back diddy now obviously to get him restrained but once he was restrained what's the justification other than he's forming some restraints had been put in place but the goal was to get him affectively subdued and to eliminate all the threats and the risk of harm and to do that they were placing the transport belt around his metal attaching the leg restraints to the belt and once that had occurred he would have been effectively subdued in fact that's what happened as soon as those last clicks were in place off off turned him over the knots when they realized he had gone unconscious this is very similar to the mccoy versus meyers case of this court ruled upon last year in that case the court found that all force used up until the point that the threat had been  which included a choke hold while dealing with the resisting subject was reasonable part two says once you know this man is unconscious you can't use any further force including another choke hold or ten strikes this case question you know the video speaks for itself your honor that a jury question i do not believe it is i believe it really is a very reasonable jury couldn't find that he was restrained is that what you're saying i think they can find restraint by the fact there are handcuffs and  follow up on the one point the judge phillips made you say in your brief on on page fifteen that the pressure on mr lynch's back was proportional to the presented threat now doesn't that sound like a jury question that was that was that wasn't proportional i believe in looking at the qualified immunity standard saying there's no underlying constitutional violation in conjunction with the fact there's no clearly established law i'm just asking and i'm just asking about the fact question that you put in your for ourselves and from the video we conclude that no reasonable jury could find her to your ten minute mark but i need to ask you want other thing when the police chief pour him testify this is the police chief k tr testified that the limits on force come from personal morals that was about it that's what he said at his deposition why wasn't that evidence of deliberate indifference to training the policy in place says that you'd least amount of force necessary under the evidence of indifference deliberate indifference on training and i believe so your honor the officers required to be cleat trained they were trained and certified they complied with all of the forms policies and procedures in that regard of commissioners of muskogee with regard to your question what would happen if jack denny and wildcat got off of the back cody lynch very well based on what he was doing would have been the he would have been much easier for him than them pull his legs out from under their apple my client also he would have been much more likely to be able to get up and thrive he could injure himself and he he effectively could damage his own his head his body it isn't a threat to him though it's that it's a threat to the officers and his and those around him as well and the people on the bystanders by standards that they're in there is only the video that we see and you can see how he's fighting the whole time i don't see him getting up or even trying to and he's not getting up because there's they're holding him down and they need to hold him down because they need to use none of force to counter the force that he's applying against him this is a man who's already broken up officers i socket and he's threatening and he's saying to the other people and they come you know that help me out that justify excessive force and well this isn't stillwater that judge henry wrote to sixteen fit at seven fifty seven and the there they had a lady who was in the jail who was handcuffed and she was struggling and they had they had to picking him up and moving him and taking to jail well they would have what they were trying to do is to get his legs immobile so that my client could get off of him so they could effectively either let him wiggle it out and calm down and so we could take him to the car because if they don't if they if they don't get his leg secure because he's fighting well then you're doing they try to transport him to the car they're going to he's going to kick them he's going to kick the car out anderson i mean it's not really secure really until he's in the car i'm sorry what about the waste well wasn't he secure by than well that that heap he passed out before that when you watch the video you can see him just clicking the way spell the l to the waist belt just click it and then that's right that's but the time that he that he passes out so we don't we don't they don't we don't get him restrained we don't get him secured where he so there so it's just when they realized he was unconscious is when that right right after they clicked that that on and then they turn him over because that's what they were they clicked him they turned him over and then within five to six seconds they realized hey he's not breathing and then within eight seconds or doing c p r and calling for a e m s so he's not our position is not restrained until they finally get get the legs where they can get away so they can stand off and they can they can know that ok we're no longer on him he can't kick he can't hurt himself he can't hurt us and then when we need to move him to the car he's not going to kick us he's not going to kick anybody else and he's not going to kick the window out of the car and they can and they can deal with him they can try to talk to him try to calm him down but until they get him into that position where he's no longer resist fighting them and and thrashing then they've got to use the metaphor stick to contain it is our position i'm getting close on time i probably need to move over a little bit to the municipal liability  pot have to show a policy that caused the unconstitutional and then you have to show deliberate indifference that they were deliberately indifference and here i don't know if it's clear from to the court but apple received seventy four hours of cleat basic refresher courses two months on before this incident on january thirtieth two thousand and fifteen seventy four hours he received and the cli training materials that are in the record at a pet at appendix fifty four i mean already forty five eighteen through forty five thirteen seventy six through thirteen seventy seven show show that he received that seventy four hours and then we got the policy at thirty eight thirteen seventy eight through thirteen eighty one which if you read it is very clear that a constitutional these are all cited in your brief yes yes yes you're on why don't you go ahead and sum up and if there's no deliberate indifference and you get an apple didn't do anything he didn't put any weight on anybody he the graham factors are in his favor the president being here and preparing for today and the case will be submitted councilor excused