white all that remains of this police case is a single excessive force claim a good sergeant white this is an incident that lasted only six minutes and sergeant why did not use any force for the st three the st encounter while sergeant white was standing with justin scott justin scott the nord repeated verbal commands specifically five commands to drop or put down the unidentified metal object in his right hand three commands to put his hands behind his back and declined to answer three questions about weapons only as sergeant wh i'm sorry sergeant scott reached for justin scott's right arm did he then say he had no questions no weapons sergeant white saw his arm coming up this is something that the district court considers a genuinely disputed fact i rely on the video where you can see its hand by his thigh until the moment he is struck and you see his hand  his waist and his admission as well that he was moving his arm but he was just moving his arm all entering questions but even based on the evidence as viewed by the court you can clearly see the shine of the metal object reflected in the sun you will see on the video a white light it is when sergeant white saw that light that he didn't responded to an immediate threat that citizen just does not want to speak to the police officer but he's holding say a flashlight and then a flashlight can a police officer use the brachial stun to the citizen who just doesn't want to be involved because he happens to have a metal flashlight considering of the circumstances what sergeant was looking out was he did respond to a nine hundred and eleven call but but but he had the district made a factual finding that he had no reasonable suspicion as to scott  crime that's correct that is one of the fact disputes that the court found was genuine that he was not reasonably suspected of a burglary but he did not use that force in so that's my question why don't applying goodsome that w circuit case both parties discuss or if you don't have reasonable suspicion of any crime then no cop no policeman can just stun the person because they aren't answering more recently this co and eighteen following frere versus city of arlington in one thousand nine hundred and two said you did not have to be suspected of any crime simply pose an immediate threat now all the sergeant was doing was trying to investigate a nine hundred and eleven call he could have as you suggested judging against and just let it go and might have but at that moment when he saw the light shine and in his perception that arm coming up he believed he was about to get sacrificed on the proposition that a police officer encountering a citizen that there is no reasonable suspicion as to if the citizen just wants to walk away not answer questions if they're holding something metal the police officer therefore is reasonable when they stun them into the ground is that the position your honor i believe you're missing a step there and that was the false arrest claim which we've already succeeded on and that is he was had reasonable suspicion simply to detain him and investigate he simply trying to investigate a nine hundred and eleven call in a high crime area where this sergeant himself recently came upon a burglary in progress and made an arrest all he was doing was investigating why but you can't knock people down to the ground who happened to be in the area you're investigating because they don't want to be involved i don't dispute that at all your honor except that i do accept that and that essentially the holding of goods and that is not what happened in this case in this case only when you can see on the video the shine of the metal object in his arm hand which is an identified it is only after he sees that that he uses a single for  stun your best authority for again so a police officer wants to start speaking to someone who doesn't want to speak to them who there is no reasonable suspicion as to involvement in a crime if approaching them when that citizen is passive the officer then also sees something metal you're saying it's even contested law that makes it reasonable to stun them to the ground to use the minimal amount of force to defend himself defend himself yes your honor he perceived an immediate threat and that is what rockwell in two thousand and eleven said it's that at the moment of the threat he'd already been questioning him there was no problem he addresses him very calmly when he's not answering his questions when he stop cases if those are the ones you cited in your principal brief reply all those cases there was either p c or reasonable suspicion then the force and says so do you hear my question are the cases that i described that i took from your brief did they all involve reasonable suspicion as to the individual that then is not compliant again you're on a reasonable suspicion goes to the false arrest claim which is not before you this is only the excessive force claim whether or not he perceived it was applying the grand factors one of them is what's the offense if the person committed no offense neither probable cause nor even suspicion i just don't see how force can ever be used against them because they happened to be holding something metal in rockwell in two thousand and eleven disport said that not all the gram factors need to be present ok the st two thousand and eleven and that is in your brief i missed it i'm not sure if it's in my and eleven and that stands for the proposition you can still policeman can use force to subdue a citizen to the ground because are they being aggressive or there's a perceived threat  perceived threat at the moment of the threat and i don't believe it can be said that no reasonable officer would perceive a threat when a suspect house and i know if i do not metal object that he refuses to draw up or respond about the metal object and the officer sees a shine of light coming off the metal object i don't believe it can be said under qualified immunity analysis with that though when i speak affirmatively you it's my mistake  case so i'm apologizing for that but it would seem to apply that policemen men could stand to the ground anyone carrying a cell phone they have no involvement the crime cop says i want to talk you up cell phone not to the ground how is that different because that that could threaten me were standing near each other you could whack me to the metal object because you consider the totality of circumstances not the cellphone in isolation you consider all of the factors the reasonable officer is a value waiting at the time that they respond is just standing there they aren't running their know there's no flight well or not belligerent there just the guy just didn't want to answer the policeman's questions your honor he didn't answer the policeman's questions initially had was entitle to frisk him that's all it is a terry stop and frisk just for a weapon at the legal question if the district made a finding that there was no reasonable suspicion you're saying that's clearly your honor is even if it's debatable under goodson at least you get to the jury that it gets to make this assessment right he said there was no reasonable suspicion of a burglary but he dismissed the false arrest claim because we of burglary is it no reasonable suspicion period i believe he said both ok well at that point at that point how can you possibly prevail qualified immunity applying goodson again your honor because rockwell says it at the moment of the threat  before me your honor i apologize i was wrong i know more recent case law that i thought was more flexible here for example i well i've given that example which is today and also briggs grig and sixteen grigsby brewer this court said whether a reasonable officer would perceive now the totality of since the circumstances is not just one thing in isolation it is the fact that he asked him three times where they really had any weapons and he would not answer all he wanted to do at that point was frisk the outer cloak clothing which is entitle to do simply to investigate this nine hundred and eleven call but as he reached for his arm it was only at that point that he said i have no weapons keep in mind your honor that there's no injury from the brachial stun there must be an injury to meet the st element of perceptive it's in a footnote but the district said there's that there's some disharmony in the circuit tracing back to brooks which you probably know i wrote and i think that just weren't right the language that i used to brooks is inconsistent with earlier binding law that if even minimal force can be excessive if even even a minimum injury can lead to an excessive force claim if the force has stun does not cause injury it's not intended to that's why officers use it it's only an injury knocked him to the ground it was a controlled takedown the there's no dispute about that he didn't just fall the ground and he didn't as you did in griggs the st encounter was standing the single blow then was the forearm strike to the neck which caused no injury i think you have to separate that out from the nd encounter didn't reiterated de mini no i did not but it does show that there are two separate encounters now going to the ground fight which is completely separate there is no dispute that sergeant white w whether a reasonable officer would perceive that's what you emphasized in griggs the inquiry is not whether he was actually resisting the same is true in or in two thousand and twelve where that plaintiff also denied reaching for the gun and this court said that is not the inquiry what a reasonable officer believe it's undisputed that sergeant white was disarmed of his taser and was taste at that point you will find most of the case officers used deadly force and he was entitle to do so the district court focused on the fact that sergeant white said apologies i was punched in the shit out of him but if you listen to the entire sentence on the tape i was punching the shit out of him to avoid tasing shooting him because he had my taser and he taste me so this is the district court did not have the proper and focus we start with reasonable of force then it becomes an reasonable person's handcuffed already they restrain him fully more do you know of a case that centers on reasonable force at the outset st encounter but then because of the violent resistance there might be qualified immunity as to the nd portion you have a case that is in that reverse order i believe that's the case and westfall your honor but i am not certain but i believe westfall which is what we rely on for the de minimus injury sets that forth basically  i have three seconds i think i'll save them for  called out there that the minimum sensory you have to look at actually the force used at the same time you're looking at tackling that's the earlier proceeding published if i mis wrote something in brooks the profanity case you're you agree that that our court has prior to that been quite clear that the two are interrelated yes and i actually didn't read the what's called decision that judge cases want as being in conflict  client and then there is noncompliance whatever we want to call legally passive resistance and then when they're very close to each other the police officer clearly sees whatever it is a mental hubcap here's the question if there is reason reasonable suspicion of a crime would you agree it would be then if the if the individual who's about to be frisked is holding something metal cop can't frisk them if they got the metal object they would have to do something abrupt to and in this particular case actually officer white and still right at the last minute only said in his interview which we cited in our in our in our brief in his interview he said it was a little metal object that he was  thought was the hubcap he never indicated that he was concerned about it fearful of it or in any way thought that it was a threat to him but in the video when he grabs the left a mark there's no way he could frisk him for weapons with the free right arm containing anything me because that when we're talking about a little metal hubcap are talking about something more like the size of a quarter as a citizen have to drop all of their money at their watch everything just when they're when they're being pressed which again actually back up on that too i think the city is actually confused they think that because the false arrest claim is dismissed that you don't address probable cause or reasonable suspicion on the excessive force client that's not true it's one of the graham factors we're told us of whether the false arrest claim is dismissed the false arrest is not dismissed by any determination that there was no reasonable suspicion or that there was reasonable suspicion or probable cause it's dismissed on the inner inner independent intermediary doctrine which we might be back up here talking about again if we go to trial and come back watched the video and i mean clearly he had his hand down and but i couldn't see what was in an office that was close and i'm giving him the benefit of the doubt that he saw something i don't know how soon he saw it and i still didn't hear it so you saw it except that he saw it and when the arm was raise so maybe he saw enough i think before that but it helps me to hear how big it was so do you know said in his interview with the officer at the scene that he can see it ahead of time that he's holding this little something and visiting with it that's actually part of how he knows that mr scott is mentally ill and all the people confess that are mentally ill this is not someone like tarver that they couldn't see his mental illness you can't engage mr stott and not recognize that he has a mental illness but are passive resistant case law so often intersects with mental illness but therefore we are asking police officers in a split nd facing an doraine deeply troubled person to perceive the distance difference between noncompliance and something that requires to protect the officer record self so the case i'm thinking of that is the hardest to distinguish i think is the carroll case right there in the end the individual who did own his home and stop getting killed because he's refusing to agree he's making all sorts of nervous castors and the force just excel rates to death and yet our court granted qualified immunity in this case because the entire things on video you can see that there is none of that type behavior of really refusing the only thing he re do is answer what he was arrested for and that is not sufficient this is not a fast evolving escalating circumstance you can see how pace people peaceful h yes yes and i would say this is facts to you this is all facts specific stuff that the judge pitman has already found and actually the trial judge had found the same thing the trial criminal judge has to investigate i guess i have a couple of questions in light of what happened respond to his questions and then i guess the next question is what was he entitle to do and is that connected to reasonable suspicion what he should have done when he found out that mr scott had recently was recently experiencing homelessness and was attempting to get to the our church which is our facility in the city of austin for supporting the homeless was offered to take him to the arch where he point because mr mr scott was not suspected of anything but the call didn't report anyone suspected of a crime to nine hundred and eleven call that he's reporting to is merely reporting a suspicious person indicating that someone they don't know walking through their neighborhood and with their things but doesn't report that that person is near a fence committing a crime any of those things all those things are disputed virtually everything that the city attorney says is uncontroverted is converted the two cases that i hadn't sufficiently prepared the proposition is that our circuit is said and card could dana and rockwell that police officers can still use to doing force even when there is no reasonable suspicion against a citizen if the officer feels threatened yet for those do those cases stand for that proposition and if so why isn't that what happened here i think those cases stand for that proposition i think that that that that if the officer perceives a threat and has and his perception is reasonable and objectively reasonable then it then those cases are in line with graham and the cases that talk about the factors on excessive force that is not the case here judge pittman found as did the prior trial judge that there was no reasonable suspicion to believe that he was committing a crime and nothing objectionable a objective lee reasonable to believe that any force could be used whatsoever ok but put aside reason i can't hear a crime do those cases say when a policeman chooses to go up to a citizen to ask questions if upon approaching the citizen now they've put themselves in a place where they feel endangered they can use force that's reasonable you know wording it that way about the police or i would have to go back and reread the thinking of we don't accept the de minimus problematic law it's not controlling and then as to the grand factors the district court made its determination at least there's a disputed fact but once they're on the ground struggling on top of each  can then can they would we compartmentalize and say as to that portion of the encounter this qualified immunity because clearly the individual is violently resisting call a protective defensive you just got a struggle on the ground and yet it came about because of an improper use of force is there a law that says that we would fracture up the food counter and say well he has immunity once once the arrestees starts fighting of that actually i mean i would disagree with your i know the video i don't think that the video finds it's violent and our expert who looked at the case of a law enforcement officer and that testimony is what judge pittman quotes in his opinion indicated that all that mr scott was doing was defending himself if anything he's right and then there's actually two things that are happening as as mr scott explained when i was tasered that makes your body convulsed and i was moving about without any control over my body that's one of the problems that of what you're seeing as he's convulsing because not just was this a far taser it's a taser right on him and the the barbs are in his chest that's part of the injury that shown in the medical records that are in the record contrary cases are is so powerful going through him out his arm into officer white that's our position of the facts and that's that's the best i can see on the video that's the best he can recall he has you know obviously in extreme pain but but at the time he's doing officer says i thought i heard him say on the video that i heard him say he has my tastes yes he did say that i think that was disingenuous he was just wrong he was disingenuous i boldly if i don't think he was wrong i think he knew the answer to that question i think at this point he's starting to protect himself and that would be arguments for the jury fact arguments to protect himself mean different well in griggs ultimately our courts qualified immunity as to this again it's one of these passive resistance cases police officers trying to get information from somebody versus non compliant and  looked at all of these facts that there was in fact no reason to perceive a threat in mr scott so that's a factual determination that the weighing of the evidence that they were entitled to make that at this interlocutor level this court's not entitled to make may get to do it later if we are for a backup here that's not for this level and i think our expert also clarified that all of his moves or defensive in her view and her analysis of the way the incident went down defensive or related to his medical condition and i mean i think it sounds like you got you all of our to resolve what what i didn't think was a conflict of what the city thought was a conflict and i have to admit the law clerk that helps me break she's like oh i see what the city saying so it's this that he wasn't the only one that saw it that way but scott doesn't want to hear and approaches with them but regardless there was never a burglary call so the answer to his question what should have been done because there was never a burglary call and no evidence of any burglary going on in the neighborhood i don't think he has anything he needs to urgently attend to but ok i mean maybe that's wrong if there really is a burglary going on maybe he does need to just walk away from mr scott because that's the other thing he could have done there was nothing that mr scott gave rise to to support that he had done anything wrong no no suspicion had been directed towards him no suspicion had been cold in about a crime and he didn't give any evidence of having committed a crime in front of the officer just having prior conviction certainly isn't a crime so even that question and  be asking that question it was he certainly could have walked away and so could the officer mr scott could have walked away because there was no reason for detention that time there was no detention and so could the officer have simply walked away and so we have to get back to trial i don't think there's any issue that merits some reversal of judge pitman's opinion at this point and he was very clear in describing the issues of the injury and that he did from the record that was not the object was not that it is the emblem that you find in the middle of a hubcap so it several inches in size a metal object the officer didn't know what it was he simply knew it was a metal object of that size he even describes the round jagged edges from that metal object but in no way is is is it a small as just represented do you have an i mean  i believe it was three inches and if you can picture that as i can on my car it has jagged edges which is what makes it when you push it under the hub cap that's what makes it stay on there it snaps in that's what they are for sure we see the and of course to him it's an unknown metal object he did not know what it was and he saw the shine off of it with respect to the ground struggle both barbs it is in the record did not enter mr scott and that's why he was never in only one barb entered not both there is a star as the evidence there is playing submitted no evidence in this case they submitted three exhibits all three of which the district court properly excluded they were generic articles about tasing in general they didn't even submit an affidavit from justin scott so they submitted no evidence for which the court could rely on they did cite to a sergeant white's evidence as they may they cited to the video but their citations were irrelevant the district court identified two fact issues they are irrelevant and in necessary under andersen the plaintiff sided three fac issues also irrelevant and an unnecessary the only thing the district court cited was i don't live in fifty six just in scar alleges he was standing on the sidewalk and not at the fence in footnote six he says there just is a dispute if he was in the bamboo or with the suitcases then set in with respect to that no this was done out of a call about a reasonable a suspicious person in the neighborhood the nine hundred and eleven call is in the record and you can specifically hear them say and it's also in the police report there is a suspicious person hiding in the bamboo leaning over the fence to my hands now that is exactly the st thing you see on the video is not that the st thing you see on the video although it's rather grainy is a black metal object alone on the sidewalk at that point just sergeant white passes and turns around while he's doing that you can see mr scott come out of the bay mbu and stand with the suitcase there are many facts that went into that st encounter judge higginson that the district court just ignored for example sergeant white says he's doing a th inning stretch as i approach which officers know is used to distract and to make a run for it when he flips his cap on the baseball cap on backwards when he starts searching pattern down his own pockets the district court ignored all of that which was the totality of circumstances that formed the reasonableness of his decision is entitle to frisk a subject for his own safety that's all he was setting out to do now it's  he could have taken him to the arch to do that you have to for someone before you put him in the patrol car this was a split nd decision that he made he's not preparing to do anything other than frisk him and i admitted by the plaintiffs is he was moving his arm while he was asking a question and he did try to step away while sergeant white was suddenly i had control of him he did one thing a foreign strike to the net there is no allegation of any neck injury risk him for suspicion of what wrong chris came for weapons so that he could continue to safely question him an correct this court found in two thousand and six that it was not excessive force one an officer used five to eight brachial stunts this officer used one which caused no injury as you as your court said in that carol case the officer had no knowledge of any mentalism illness there was no knowledge of that in this case either nor is there any injury physical injury or psychological injury from the st encounter with a single break in the system there is no psychological evidence of psychological injury being exacerbated the only evidence is extensive psychological injury since childhood we ask that you reverse and render judgment in favor of  sergeant white based on qualified immunity there's no further questions thank you thank you