both times to the deputy that will suffice you don't need to ask us again please call the first case of the one seven five james holmes individually arguments not to exceed fifteen minutes for  the court your honor the agreed upon facts in this case viewed from the perspective most favorable to the plaintiff showed that after a police chase of approximately forty five minutes my client mr courtroom was slowing to a stop because heavy traffic made any further flight impossible at that point he was struck by the trooper who had been pursuing him from behind and that collusion was either the result of an intentional decision by trooper combs to ram him in was code a precision immobilization technique of a pit man or was the result of negligence that being the trooper coom swoon following too closely in order to be able to stop before striking mr quatermain isn't it also a fact that that the record shows that he was coasting at the time that he hadn't put his brakes on and their four had no brake light operating there that is one interpretation issue on or that he had down shifted in not yet applied his brake well didn't he testified of that he i think he did you are right well then that's an undisputed fact if it weren't for it but by the same token although he was coasting to a stop he was coming up to a line of cars on a two lane road with heavy traffic from both directions because this collision occurred right by a large church on a sunday morning was there foot traffic also no not really you're on or there were no there was a sidewalk in the direction he was pointed to the i believe to the live side where there were some residences but there was no real appreciable pedestrian traffic so we went to slowing down to avoid hitting somebody he was slowing down because he had to there was no place left to go two lanes oncoming traffic and traffic backed up from the lighted highland way in so he couldn't pass he pulled into a car that was backed up behind a car that was backed up from the light well slowly you know that negligence i think is a possibility but this maneuver that you're talking about is not one that's normally done on us on a residential street of this nature it's the kind of thing that happens out on the highway when there's no other way to stop a vehicle and i agree or i agree but there is none the less evidence from which a jury could conclude that that's exactly what happened here the officer estimated that when he struck mr control  he was doing forty to forty five miles an hour there were no skid marks at the scene and mr quattrone testified that just prior to the impact he heard or said that he heard officer coombs engine accelerating or reading higher so there is evidence to support the application of a pit maneuver and for the purpose of a ruling on our fourth amendment claim judge starburst assumed that he assumed that officer intentionally was applying the pip well he did that because as i understand the law the law says that if there is if this is an area where there is the risk of injury or to people or damage property that maneuver is not illegal it's not improper well it isn't that the reason the district court held that well i think the reason the judge diver's assumed for the purpose of a ruling on fourth amendment claim that officer coombs and intentionally applied to pit maneuver was number one because there was evidence to support it in number two because under a fourth amendment claim it has to be an intentional conduct by the law enforcement personnel if it's merely negligent that falls under fourth amendment due process and we didn't plead due process we we went for negligence on that claim so with regard to the fourth amendment claim the judge had to look at it from an intentional act perspective and we believe as we are you doing are you are you something the worst i'm sorry it was the worst yes yes  but yet still there is evidence to support a given that that act was a help if he was assuming that and he found that you know all the circumstances would support it why did he not even if the traffic made any further flight impost so why didn't he rule that that was a violation of the fourth amendment that was my question well that's why we're here on appeal i don't know why he didn't rule though he had to say others that was his reasoning our reasoning is at the point that he was slowing down he no longer presented a risk of danger you have to look at  corrective situation right yes i mean you can't expect the police officer to read his mind correct so he knows that there are some serious outstanding felony warrants and he knows that he has slowed before but kept on going and he knows that he's driving fairly recklessly so he comes to the situation and you know everybody actually is thinking about calling it off he he slows but he doesn't know whether he's slowing because he's going to stop for surrender he doesn't put up his hand like i'm going to surrender or he doesn't you know he doesn't send some sort of signal for all the officer knows he's slowing down because he has to and soon as he sees an opportunity he's going to pull away again so i mean what's wrong with that analysis what's wrong with that analysis your honor is in terms of an application of lethal force there's no question but th is is is at that moment he presenting a risk of harm to the safety the will being of the public or the police officer who's pursuing him really he clearly from the officers perspective he is at that point right you're just saying he took steps that are egregious in light of the fact even in light of the fact that he was creating a risk well goodness he's riding a motorcycle into a bunch of people after having led the police on a chase will you or does your argument depend on the idea that he's not creating a risk to other people at the that's exactly what we're saying your honor at the door depends on lowell makes your argument that one if if he's going if he's going slowly he's not a wrist but if he were to pick up again then he would be a wrists so do they have to wait until they're in the middle of a chase no your honor the evidence as i indicated supported that he was coming slowing to a stop because the traffic made any further flight impossible you know we we don't have we don't know that i guess that may have been his was that his position i mean i've seen motorcycles go up on sidewalks i've seen motorcycles go through the traffic coming each way he's on a motorcycle he's not in a truck well i understand your honor but but that was our out how does the officer who's been following him know that by the time that it's not the case that by the time he gets out of his car let's say he stopped right behind  and that by the time he gets out of his car goes to the motorcycle he's he will not have found an opportunity to pull out again well that's a legitimate question but that's not been a consideration of the courts in making rulings on on application of lethal force they haven't then asked the question well what could happen that was that was what judge mckeague did in the walker v davis case i thought i thought there was also a case called scott which i was trying to get you to be here the supreme court case yes and that one would tend to indicate that that what happened in this case even if it was the worst case scenario still wouldn't have been a violation of the fourth amendment you know i disagree because it's got to be harris the motorist was still in full flight in fact they were on an open road as you indicated earlier with these maneuvers are typically applied here and on an open road they were flat out and that's when the the officer attempted the pit maneuver that resulted in mr harris's quadriplegia so we political here well that i think you're opposing counsel is going to argue that it is and apparently the i see i'm just scanning this from district court opinion that looks like the district court siding skop thought that was the case there's nothing in scott that says it has to be an open road i mean that's normally where that maneuver as as you and i were agreeing that's normally where the maneuver me take it from the public danger perspective at the point that mr courtroom is slowing down pulls into the driving away and is slowing down is no danger to the public if he's intentionally rammed and then motorcycle is kicked up into the air and goes through somebodies windshield it was pulling into a driveway no he was pulling behind somebody in a lot of course that was backed up from the lighter if he struck from behind luckily he was ejected the bike went down and sp across the street but if that bike it popped up and gone through the windshield of an innocent bystander we'd be having a whole entirely different argument here you'd also have a different plaintiff to we would but the court isn't you're talking about the person you can talk about maybe he violated some kind of constitutional or state law duty to third parties by risking them but piece of the this person who's been leading them on the chase it's pretty hard to say that that person is entitle to say well you hurt me because you endangered it please the court mr bell's only money ms jason morgan and i have the pleasure today of representing the kentucky state trooper brick coombes who was following the appellant when this chase happened and the acts and of course happened when you were trying to figure out how how far it went on and the best figure we could come up with in my office was five miles is that was there anything in the record about the length of the that's a that's approximately correct your honor there is some question as to how long the chase went on i can say this for the court for the record it's really quite important is the chase went on long enough that trooper coombs who was actually in the dispatch of the k s p post post three in bowling green heard trooper mayfield call in for the warrants the warrants on kidnapping rape sodomy all of that came apart and then leaves dispatch to intercede in the chase so it is not a chase that was of any short duration if you look at it from that perspective because trooper coombs was able to leave the post catch up to the chase intercede and take over the chase just out of curiosity or those warrants actually against this plaintiff they were absolute and they were active warrants and that that's a very important issue not only because of the danger that appellant created to the public under the objective reasonable standard as laid down by graham and connor and certainly the entire case law on this issue but he had created such a dangerous to other people for these various serious follow nias crimes that he was charged with so most of these cases they look at the danger from the traffic offense just from the fleet but in this case we have these really serious crimes too which makes it infinitely more important under the objective reason most standard to have apprehended the suspect now if we look at some of the questions your honor supposed to tell counsel about well had stopped what we're doing in this case then is the very thing that the courts have said the supreme court has said it's got to be here is that we cannot do we cannot go back from a twenty twenty hindsight perspective whether it's the judiciary or the counts or the parties and say well what i've done in that situation what we have in this case and what we know from the record from the undisputed facts is that quattrone was clean and his flight had all sorts of felonies class d felony for flight alone one endangerment but then let's look at the specific facts of the flight itself to look at opponents argument that he actually was ceasing the flight well he had a third party bison the motorcycle he pulled into a parking lot of the restaurant drops that third party off in between barriers to blockade himself from the pursuing officer that's indicia he's not stopping this flight he's running red light ield is who actually had the pursuit first and he picked up the third party that appellant dropped off and then he takes this particular individual back to post she actually said in dispatch  and heard the calls if you will and we've of course produced all of the radio transmissions so enough time if you will your honor for trooper mayfield didn't go back to post three that was early on that's correct and then trooper coombs intercedes takes over the pursuit he blows through red lights lieutenant clark blockades an intersection he goes around and judge doherty you ask that question you said i've seen motorcycles go up on the sidewalk how was any k s p trooper to know how was trooper coombs to know from an objective reasonable standard that this appellant was going to stop his flight he could not have known there's no way to read his mind your client's position though is that he didn't intentionally stop it that's correct and all kind of artificial from your perspective i mean you're defending something that you claim didn't even happen that is correct or presumes testimony was it was an unintentional hit and i think that is why the district court judge seibert looked at the fourth circuit's case in a to this case that i think judge stivers wanted to look at that and not to in any way dish diminish this court's a decision in walker v davis which is a very important case although incredibly factually in a posit to what happened in this case or adney but there was that dispute and me whether the pit maneuver whether the contact between the officers vehicle and the fleeing motorcycle was intentional and for purposes of the nine hundred eighty three claim starting with selsey of the cats and say in the question in the first question is was there a constitutional violation was there excessive force so let's assume that there was the evidence most favorable in the light of the plaintiff for summary judgment for appellant right let's assume it was intentional ok if it was intentional objective reasonable it was the four successive and when you apply that three factor test and all of the very particular specific facts of this case the force was not object it was using the force was not excessive no constitutional violation we don't even go to qualified immunity but judge stivers opinion the district's opinion is so exhausted he goes to qualified immunity he says ok well let's assume there was a  still summary judgment just trying to help us out that's correct i think your honor i think getting at all ira there far as i understand i agree so in there which way you look at it whether is intentional conduct or unintentional condoms you have no ninet district looked at that issue and said there can be no negligence claim when we're talking about battery was the force excessive was there an arrestable offense was there a good faith basis on the police you can plead in the alternative but then you have to look at the case law whether it's turner v hill the various case law from pennsylvania michigan the chance to look to that does not afford a duty of ordinary care if you will to the pursuing if that's an issue that hasn't been decided why why shouldn't it have gone that one so the judge  got rid of the ninety three claims white shouldn't have gone back to state court well judge diver's one has supplemental jurisdiction over the pin to state court claims and he did decide it is in a summary judgment and he found that there can be no negligence when there's a battery cloke a clear and can groom that's wrong that's fair then there can be no negligence if no duty of ordinary care is owed and there is no do it in court i'm sorry one has the state court press that question the state court hasn't that comes out of the case of the western district of turvy hill although the western district in the walker case did that analysis although when it came up to this court on appeal it was on in that that the force doesn't have to be reasonable no cause then you go you go back to the battery you can only use that much force which is necessary to effectuate the arrest but if you look at the negligence out of battery you're saying if you have the if you have the power to arrest him right we have the power to use force that would be a battery if you didn't have the authority to arrest him right yeah i think what you're oh if you have the authority to arrest him you say then there's no more duty and i'm questioning that because i can't believe it's the law of kentucky that you just have no duty not to use force that would cause harm that you don't need to use so if you can arrest somebody that could mean that doesn't mean you can beat him over the head with a baseball bat that's creeping though it's not a battery to arrest him there's some level it becomes too much that's ill nature of their argument that's where you can argue it wasn't too much here that makes perfect sense but to say it could never be too much seems a strange i think it could if you look like in the scott the harris cases and you look at some of the analogies where they don't talk about state law and i understand about battery and and negligence i just wished wanted to analogize systems some facts if for instance let's say in the pursuit they're firing out the window a gun right that's patently i think would be unreasonable right in pursuing someone but if you look at it so you do owe a duty not to shoot him when you're arresting him correct not to use that extends out to doing research talking about the scope of the duty them but when you're looking at the negligence claim you know if you look at the case of later in the jones if you look at the ministerial versus discretionary case law in kentucky and even the case that appellant cites to try to save his negligence claim it always talks about the injury to the innocent third party all the case about innocent i'm nice can you about injury to him let's assume there's no third parties around and you execute some kind of maneuver which you have the right to do which might mean grabbing him by the arm he might be able to grab him by the armory might be able to pull out in front of him there's all these things you might be able to do which would cause contact to him which you're privileged to do under kentucky law but still owe a duty not to do more than you have to do so you can't you know use that use of fire torture something that's great you can't hit him on the head with a baseball so you have a duty not to use unreasonable force whether it's part of the bat whether it's qualification of the privilege to the battery or whether it's an independent negligence and it doesn't matter too much what you call it you've got a duty not to do too much to this very person that you have to arrest would you agree with that i would agree only in the context of using excessive force and it's hard for me to concede the only way why isn't this just like using excessive force under their theory intentional conduct versus negligent conduct because the battery in itself is conduct intentional claim you can recover but i think that creates this over what is reasonable and it's much more likely to be reasonable to use force when someone's engaged in or in a in the kind of conduct that this person was engaged him so all kinds of things are going to be reasonable that would not be reasonable if you're just arresting some little man who who shoplift or something i think so so the what's reasonable is something that you ought to be able to allege and recover on if you if for instance you beat own example let's say the action had not occurred let's say that a parent actually stopped ok koons gets out of the vehicle he puts the handcuffs on him is there a duty at that point when he puts him in the back of the coa duty before that i would be before you before you even touch him you know not to drop an a bomb on him it's just this clear i think i have to respectfully disagree that there is no duty at that point you can just torque i'm really under kentucky tort law i would say that i would turn to the battery claim and i would say under state tort law he would be culpable of excessive force under the state tort of battery not negligence he would use excessive force and batterers that's current not negligence because that would be intentional conduct of course is reasonable or it is no i'm sorry it's still whether the force is reasonable or not it would be going over the statute of limitations or something i mean he wins if it's unreasonable and he loses if it's reasonable let's say he's he's yelling stop or all sued and buy in the stake a suit is he didn't mean to and then i would again say from an excessive for standpoint it's battery he has an arrestable offense and a good faith belief that there is an arrestable offense and that exact factual scenario was in tom and the elizabeth where the approaching officer sticks a gun into the car window and the passenger stops ok he's off his bike he turns around he goes like this and the officer was just too busy talking to his partner any didn't see it any rams right into him i think i have to simply i know it's that amount of time and certainly i want to answer your question your honor that at the end of the day you have to look to the balancing test what your answer can there be and why can't that be a negligence claim because it falls on your battery it's less and then only just a routine with you on the oh every time you get into a car accident it's a battery under the ministerial aspect of emergency driving there is no immunity and that negligence claim can happen but what we're talking about is the hot house being pursued in this case which is discretionary from beginning ok and it would not it could because what we're talking about is the officer who claims that i was following this guy and he stopped to pass they have in front of me and i ended up hitting his we'll that's what we're talking about right now under that scenario is correct you are and i think at the end of the day you have to look at you know who place this chain of events into that's a question of whether he's negligent or not you're saying there can be no such claim or do i misunderstand you you don't misunderstand me i'm saying that there is no duty and the district court in a matter is a duty do you still look to lose them if there is a duty there's a negligence crime if there is a duty there is a duty he's negligent under the negligence standard if there is a duty of ordinary carried out there would a negligence claim and would that survive i don't think so under these particular facts absolutely not be you say there is it you say ok i can see there's a negligent claim but you look at reasonable care and there's no claimant to these facts i think you look at the totality of circumstances and in this case judge divers are properly looked at various cases that said there is no duty of to the fleeing felon for negligence it would be resolved under battery so your times  yours with regard to the no duty cases on which judge divers relied all of those cases involved instances in which the plaintiff was injured the the injury was self inflicted these were in one case a car went off the road fleeing from the police another one motorcyclist went down these roll self inflicted injuries in and as i pointed out in our brief in a number of those cases the courts pointed out specifically these were not injuries that were caused by any action of the police other than pursuing this individual which they were entitled to do admiral your honor is close but we believe it's distinguishable because the motorcyclist  was remarkably similar to that that the plaintiff in the walker davis case had in gauged it ran a red light sixty miles an hour except the one big difference my guy was no longer fl well but again it gets back to the core doesn't consider at that point the warrants they're out on in the consideration is what threat is he representing to the officer or to the general public in walker they said he's in a m field too far away to pose any threat even though judge mckeague said if you let him go he is going to get back on the road at some point in this case we show that our man slowing down and then the heavy traffic made any further flight impossible lassally twenty twenty hindsight this isn't twenty twenty hindsight as we argued in our brief it's interesting we believe that the kentucky state police itself what i think is the important point is at interesting well let me just say the courts are broadening the discretion of police in pursuits well at the same time law enforcement agencies are reining it in he didn't have to wait to see what happened in the man it stopped he pulls up he stops behind he gets out of his car and the guy takes our puts a gun on him in a ransom well then maybe he does your honor and maybe and maybe walker gets back on the road if he's not run down in the muddy field well and i think the a court ruling that an officer pursuing a suspect has no duty under any circumstances not to run him down as a very dangerous judge there is because it's a battery claim and even if there were there is no duty or did he just say there's no negligence here because we're talking about battery what he said your honor is he didn't think that was a negligent claim he thought it was a battery claim but even if there was a negligence claim we could recover because there was no duty