please the court my name is jacqueline greene along with attorneys to me now we represent lamar wright the plant appellant in this case judge clay i'd like to reserve four minutes for rebuttal please thank you we are here today to discuss the district court's his vehicle to his false arrest three malicious prosecution and four extended detention that they caused we're also here to discuss the district court's decision to summarily dismiss mr right now claim against the city of euclid without examining the evidence supporting our contention that the city of euclid was the moving force behind these violations the city of euclid's police department is department with a number of bad apples of which kyle flag is one and the department has a track record of disinterest in investigating or disciplining officers and the chief who thinks it's appropriate for officer training on use of force to include so called breaks in humor with skits about police violence against black people it's in this caused him to experience an extended to tension and to face prosecution for several months before all of the charges against him were finally dismissed this case boils down to disputed facts about one what happened at the east th street house leading up to the point that flag and williams got out of their car to approach lamar right later needs to th street what happened when the officers opened his car door or rather actually them are voluntary only open the door while complying with their orders but the question there is did he resist did he in the court's decision are in fact speeded and the court's legal conclusions flowed from those disputed facts so in this case the totality of the circumstances dictate that flags and williams use of force against him are right was excessive that they were without probable cause to arrest and prosecute him and that flag rights extended detention if the will of the jury alone to wade credibility corroboration and inferences in the process of finding facts and the jury not the district court must decide what actually happened and why it happened and whether them are right marcus writes under the u s constitution and ohio state laws were violated appellant asks this court to reverse the district court's decision in its entirety now turning to the factual disputes in this case are briefing outlines them in detail but to address them briefly when that used two hundred and seven street house st of all flag and william say there was no person visible course lamar says his friend was sitting on the porch they claim them are pulled all the way up the drive to the back of the residence out of their view and this is where the assume he engaged in some kind of drug transaction except our was in plain sight he said he did not pull all the way up the drive he spoke to his friend who was on the porch and he remained in his car in plain view of the officers obviously on the street side of the house so the officers were surveilling this house for drug transactions and they were surveilling the house however when they both admitted that they had no idea whether they were s based on old or still complaints and also williams had previously surveilled the house and had not seen any drug activity whatsoever at the house that's what they knew and that's what's important in the reasonableness analysis here when you look at the complaint history in this case there are only two complaints about potential drug trafficking at that location contained in the record they are one of them is over a month and a half old the other is over seven months old they had no information and certainly in terms of what they were watching they both in mit that they did not see any criminal activity they did not see any drug transaction at that house but the key is the dispute right so they knew that are they they suspected the house was a place where drug dealing was occurring and  wright pulled into the house when his car and had a discussion with the owner of the house is that correct he pulled into the front of the house where he was in plain sight not in the back of the house and this is the know going up to that point so they knew he had he had mr right had come from a house that they suspected of drug dealing he had had a interaction with someone at that house is that correct you've had an interaction but there was no transaction and chris was on the porch he was in his car they talked about his recent surgery ok and the worst but ok but but could they have could was there not interaction that there could have been a transaction or something could have been drugs could have been given to mr right now or they could have thought that drugs were given to mr arnault because mr wright remained in his car and chris was on the porch so how do you get drugs from a port you know it was it was a long distance so to speak conversation they didn't  walked over to the car and lean down or anything like that yes ok so that's the information they had starting out and there's also this information about the rental car issue but they both admitted flag and williams that they learn later clegg says well we might have checked that after he left the house williams says that we learned later in terms of the rental car issue so as far as what they knew at the time they just saw a guy in a car having a conversation with a guy in a porch about his so they did not have any reasonable basis to believe that he was engaged in a drug transaction at that home and then of course he leaves the house he drives around the block makes a couple turns of course there are disputes there is well he says he used to turn signals the officers say he did not and then they arrive at the nd house that used to th street now if they observed him if they believe he didn't use his turn signal would that give them a reason it's reasonable suspicion to stop the car well you know obviously a traffic infraction is what it is but they've repeatedly said this was not a traffic stop number one number two flag was very clear that they were going to stop that car as soon as they saw it at the st house it was not based on the traffic stop this decision to stop and search this vehicle was made before anybody knew anything about the rentals for the alleged traffic infraction of course there are disputes about that now and the house of course when they reach the vehicle they walk up to the car right immediately puts his hands up legs says  you know i like the car he opens the car door locks the carter manually for him he says turn the car off he turns the coffee's completely compliant with flags orders at this point and then flag grabs his left hand shows him steering wheel clearly causes  pain because he's saying repeatedly you're hurting my arm you're hurting my arm and then as we know in the aftermath of this he had had a surgery it was hard for him to move but the officers knew at the time was that they both admitted this was a tight space it was hard to maneuver it was going to be hard for them i like to get his right arm around to present it to the officers to be cuffed and ultimately he just can't move fast enough for them and you can see in the videos and i think these disputes are really important because flag and william say that lamar right pulled away from them when you look at the videos especially if you watch them and slow motion that's not what you see there's a lot and flags body camera a flat screen you can't really see what's happening but you do see them are right basically sitting if there was no reason to believe that he was going for a good one there had been no indication whatsoever that he was armed and secondly williams who is on the passenger side what had the reaching he described as to the ignition in the gearshift and that the only reason he saw and flag admitted in his deposition that he didn't actually see lamont reach anywhere so there was no reaching going on lamar right alternately was compliant with all of their commands and of course then they tasered him they sprayed him caught him significant pain and the irony should not be lost on any of us that what they did at the end of the day was back away from the car and want him out of the vehicle without touching him and he got out of the vehicle without being touched and none of this force was necessary it was are greater than necessary to effect the detention that they were attempting to  put forth while they claim that he was reaching for a gun possibly they claim that they thought he was engaged in drug transactions and had drugs in the car of course there was no contraband whatsoever in the vehicle there was no weapon there were no drugs alomar right alternately was a victim of excessive force false arrest prosecution and a program detention for no reason whatsoever when all the charges against him were dismissed is there any evidence of either of these officers having excessive force claims against them in the past well i'm glad you asked recently now after discovery was closed in this case channel five cleveland did a deep investigation into the use of force incidents in the city if you could and out of two hundred and thirty seven use of force f completed by you could officers between about the middle of two thousand and sixteen in the middle of two thousand and eighteen which is the area surrounding this event flag had completed the most use of force forms out of any officer in the entire department he had thirty five of those two hundred and thirty seven now in addition to that there are a number of other incidents we outlined in the brief richard rd case aramis spencer case which happened around the same time the luke stewart case with the decision from judge went in the northern ohio so there are number of other incidents of course and then in addition to that there's the racism component which we had admissions from sergeant roski that there had been open overt racism in that apartment in the ninety's and still continues today not only in these specific cases but i just named in a number of others but also one of their own officers just filed a lawsuit and actually has a trial set in march for allegations of racism within the department racial slurs being used against him by his fellow officers so this department has significant pattern of excessive force problems and i'm going custom and practice culture policy implicit and i think explicit policies particularly contained and that defensive tactics training of overt racism and months or so after this event however obviously this training didn't just pop up out of the blue the chief said that it was appropriate he had no problem with this type of humor being used in his department or training and that is not something that just happens one day when it didn't exist the day explicit in this particular training and customs practices and ratification all the like encouraging even excessive force and in particular against people of color  my name is frank scaled down i represent the city of euclid and the two individual officers in this case we have this court to affirm the trial court's decision granting summary judgment the overarching theme in this case and wooden forms the district court's opinion is the notion that these types of situations must be viewed from the perspective of the officer on the scene in the understanding that officers must make split nd decisions and rapidly evolving events the overlay to this theme is our qualified immunity protections that we give to public officials and police officers and there is we know qualified immunity protects officers and once they make a clear violation of clearly that just doesn't apply to this this case in the scenario that presented these officers starting with the excessive force claim with regard to brandishing the firearm the officers acted reasonably  a valuing that there could be a potential threat here here they were assigned by their supervisor to serve ale a suspected drug house so they understand that when then after he left that scene he was driving around and wound up at another house that was in his own residence and pulled in to that area so it would know the house that he was spotted at is the same house that excessive force is the use of the taser and the pepper spray so would you focus on that because that's that seems to me that the strongest argument they have for excessive force absolutely i think again we have to look at what the officers were  facing at the time they decided to use force one i mean there is the backdrop as we've discussed there's the backdrop of the of the potential drug transaction at the house and i think that there's a reasonable connection to believe that weapons are are frequently used in drug related activity when the officers approach the car in the the other house they did the plaintiff and mediately put the car in reverse indicating that giving a reasonable perception that he either posed a threat to the officers or that he was trying to flee the plane to the will of the officer williams was yelling at the plane of a danger in the because his hands were not providing his right hand and it one point he was able to break for your you or the officer lost his grip while holding onto his right shoulder and at that point officer flag stepped back and made the split nd determination that he was going to use the taser now at the same time you have the use of the pepper spray which also is one of the use of force claims that they have with officer williams the information that he knew before you use the force was that again the plaintiff was involved in what appeared to be illegal drug activity in the connection between the possibility that there would be weapons involved at the the house that is being suspected of drug transaction at that time they did the search and found out that it was a rental vehicle but what is in the record regarding training of officers when dealing with suspects who are in cars you know there's the basic training my understanding and i don't have it at the tip of my fingers that there was discussion about training on that it was safer to be able to secure somebody who's in a car the fear being that if they're out and they're not cost there's more of a chance that they're going to flee what about the use of pepper spray and and tasering is there anything about that in the training that's in the record there is yes there's the general policies and procedures that are part of the record in this case that i believe that they're even attached to the summary judgment motion practice and is there any allegation by mr wright that any of those policies were not  know respect to these officers i don't recall any but i'm sure that there will be an argument that somehow that they were they were violated but i don't recall there being a specific argument made in the briefing that the policies  were violated but i guess perhaps of a reason for that as we know that even a violation of a policy is not a violation of a constitutional right right and is there any allegation that there is any policy of the use of pepper spray or of the officers to any particular policy of the city none that i'm aware of and this low level use of course of both the taser and the pepper spray when the you didn't in relation of the tally of the circumstances and the quick decision making that needed to be needed to occur if i was firmly within the constitutional rights of using this limited amount of force to obtain compliance or out of fear of the weapon that's and then in answering your question i'm trying to build what you know as as we know in the six circuit you have to evaluate all of the totality of circumstances and that goes up to the point where they did to desired to use force and those things are from everything from the suspicion of the drug transaction with the potentiality for weapons the fact that he's put the car in reverse and i might add it's that's the way you would get out of a driveway but once lease or asking the question of the drug transactions  police then you have the issue when he did take the car out of reverse you have the issue of he's not responding to the officers commands to show their hands or his hands or darting in toward the council or below the console of the car they're concerned again going back to you've got a drug transit they're concerned for their welfare because you have the potential for weapons and you have a point if who is not complying now when the the use of  when the door is open and he is the officer flag has got one of his arms there's still the underlying concern that he has a weapon and there's the they don't know where his right hand exactly is what they do know and the video you know the video i think indicates this is that he's not giving them his right hand and his hand is down where the console is so they have in a den of fide what he's doing they just know that he's not providing his hand and they're concerned for their welfare when officer flag loses control or his loses control of his right shoulder and he goes forward he steps back and they  to secure him at the scene again they believe that that was the most prudent course of action to take and while he may have believed that he had put his hand down from the perspective of the officers and what's clear  video is that he's not giving his hand and he admits this and he makes the claim that he's in subsequently he says i was reaching down to to to grab my phone or set my phone down but still from the officers perspective they haven't  a quickly developing situation they don't know if there is a weapon they're not sure so the handcuff him is to secure him for both their protection and i would seem that his protection as well unfortunately they didn't know he had surgery and assuming that's what his argument is but that's something that wasn't in the knowledge of these officers let me ask you about the false arrest claim what what crime or crimes do you contend  the basis for probable cause the basis for a probable cause is reasonable it you have the obstruction of justice or resisting arrest and there you have the admission of the plane if he admits it that he failed to follow the officer's command and then pulled away from the augustine a red just following not following officers command alone is that enough to give you probable cause for obstruction i guess that it is yes with regard to the resisting arrest he pulled away from the officer appeared to pull away from the officers and resisted the restraint to talk about it obstruction of official business yes are you aware of a recent decision i just got this morning that but i mean the affirmative act here is the him pulling away from the officers and the failing to follow the specific commands of the officers repeatedly think that that constitutes either of those constitutes an appeal we are not but if we don't believe that's required for the determination on false arrest because the other two claims would justify that as far as the malicious prosecution i believe the th circuit consideration appreciate it thank you very much you i'd like you to focus on the now claim and what is the cause i'm trying to get it right my hands are at mind around the kind of the causation analysis what do you have to show as far as the link between your in addition to that there is no policy that the officers did not follow the tasing policy we're saying that there actually is no training on it and there are no policies on it and this is the kind of gap where the failure to have a training program or a set of policies addressing these issues gives rise to potential problems that are so obvious that right injuries were a highly predictable consequence of the failure to have those policies and that training and also the simultaneous use what the officers saw that allegedly gave rise to the theory that he was engaged in drug transactions but i just posit that there's a guy sitting on a porch who might be attached to a house that might maybe have some drug activity going on and lamar right just sa hello this is kind of three degrees of separation situation does that mean that any one of us who says hi to someone on the street who might have a connection to a connection to a connection of something can happen roll up on them with a gun that's absurd there's no justification trying to comply and they never gave him a chance to finish complying with their orders but he was in the process of complying he was clear he never pulled away and when you look at the videos the parts that you can see and of course there are parts that you can't see but the parts that you can there's no image of him pulling away and these are issues for the jury at the end of the day and that's why we ask that this case be remanded and sent back home are right deserves his chance to present his case to a jury is within the jury's problems to weigh these competing inferences that one might draw from the facts here it's not the role of the district court judge to make those determinations disputed facts underlie everything that happened here from the start to the end in this case have failed to grapple with most of the disputed facts in this case they keep us serving their own version of the facts and that necessarily preclude summary judgment in their favor the ones they have addressed and like i said they just simply give rise to disputes there are two different counts here the jury has to sort it out likewise mr wright deserves the chance to have a jury decide whether or not the city if you close history of racism among its ranks i'm going failures to discipline officers for excessive force incidents no one can remember a time when that has ever happened in this department along with the repugnant training which kept captured the p d s culture and practices and implicit policies around use of force in particular against black people are right should be allowed to have a jury determine if you close the moving force  here and encouraging its officers including flag and so called humor to exceed the constitutional limitations on the use of force all of these questions are within the province of the jury and for these reasons we ask this court to reverse in the they claim that ultimately he was being shipped downtown to the county jail because he had a medical issue except he posted bond there's no reason to keep them and obviously if he's not in their custody they have no duty to provide medical care for him and no one can explain why he was shipped downtown and the county jail people don't understand it people don't understand if the bond was posted he should have been let out and this just ties back into what happened at the hospital where they tried to force him to undergo a cat scan to see if he had anything in his body which of course the hospital legal told everybody no you can't do that and then in addition when he ultimately refused they said ok now we're charging you and then when he gets to the euclid jail he's told by a correctional officer those two officers said they want you to go through machine a body machine and they want to do a scan to see if you have anything in your body and this is why he was being sent downtown even though his and posted i think that their explanation makes no sense it's very clear that when you tie flags designation of this case as a drug investigation and his admission that he knew this would result in additional searches in the jail coupled with what lamar was told by the correctional officers it's clear that caused this extended