you please the court i'm hank shared i represented ms ransom the foundational question for this court is whether there was a lawful order it was  the district court and by the apple in this case ms ransom was in her own home in her bed in fact did the normal natural thing any homeowner might do if there's a commotion on their lawn came out onto her porch observe what was happening twenty five to thirty feet away and did nothing else what and what was going on was a man on his knees her son with his hands behind his back in the process of being cuffed by debbie you know we know the facts and we look at the cause for an arrest for disorderly conduct and obstruction of government operations if the officers reasonably believed that they were that she was distracting them and court following the u s supreme court's decision in houston v hill has made it crystal clear in multiple cases scott the city of atlanta davis the williams what happened here importantly was not any of those things what happened here was an order an order that had no lawful basis was not designed for officer safety was not designed so can i can  ask you a guess you keep saying that at the order had no lawful basis but i mean judge wilson has asked you about two alabama statutes there's a third for resisting arrest and it seems to me that your case rises or falls on the notion that it's not even a close call nobody with any sense could think that this was even arguably recklessly creating a risk of causing public inconvenience annoyance or alarm by either to mull just with to mall to us or threatening behavior or unreasonable noise i mean we've seen the dash cam video we heard a lot of them all to us behavior in a lot of unreasonable noise and why wasn't it reasonable to judge wilson's point for the officers in the heat of the moment to think that this is a close call that's that in that i mean once you say close call isn't the case over if you just say if you take this incident and put it in a public street if you take this incident and you it's not in opposition to a clearly  so i'm sorry but but i feel like we're kind of assuming the truth of the conclusion here you keep saying in opposition to an unlawful order why is it an unlawful order when they're trying to effectuate an arrest this is you know sort of on the spur in the heat of the moment she is saying you know that's my son get your hands off them or whatever she was saying and then they say go inside and she says no why is that not at least arguably resisting arrest disorderly conduct or obstructing just if law enforcement does not arrive in our lives without having to have a foundation for their authority ok ordinarily for example property there's a whole other set of you rules that usually applied they are not presumed to have the authority to tell us exactly what to do and how to do it and why and why aren't they are allowed to briefly direct  objectively here and so why why aren't they allowed to briefly direct the movement if there is a legitimate law enforcement reason absolutely probably there's enough of an umbrella for them to do that but the the underlying question for a jury i believe in this case and really as a matter of law frankly in math hang some below pinion opinion it is whether or not in the first place there's any law enforcement purpose to be served to keep somebody from standing on a porch silently watching now you know less assume for purposes of this question that there is isn't there an arguable probable cause to arrest her for at least one of the three an emirate at statute absolutely if it's a lawful order to go inside she has no right to stand on her porch and watch what the police are doing thirty feet away where there isn't a fight any any any legitimate law enforcement safety or other legitimate concern absolutely she she can be ordered to go inside and she can be rested but if if that he even if the arrest is lawful that still gets to the use of force correct it does you know but but there is no question but that it is not we can't turn the way somebody resists an unlawful arrest into a basis for arrest if if we are speaking words we're not attacking we're not encouraging we never encouraged him to resist to be clear and then this was i think the reason why jury can conclude was entirely about law enforcement authority not being properly respected and not all about widget a met law enforcement rules and reasonable jury can conclude there was not this was about i say you go inside you go inside it was never about oh we need to safely painful handcuffing without more is not excessive force in cases where the resulting injuries are minimal that is certainly true in what i would call you your generic can't cupping case never brought one never w control these are sensually big piece of metal that has barely any movement they were placed behind her back and then with a grip on them you twist them fall and that digs the cuts into the hands this is a little and between her wrists you twist it forward and it digs into the wrists which she testified to did so and is it your position that the use of these kinds of cocks is just percent excessive absolutely not absolutely not because i mean and in a way i would almost hope you to say yes because the difficulty for the officer is all this is i mean this is so easy for us in a courtroom after the fact but the difficulty for the officer in the heat of the moment is you know he's got these guys had an arrest to effect   eight and there are multiple people you know you can sort of envision the head on the swivel with the mother on the porch in the sun in the front yard and now they're arresting her and it's just very difficult for him to know we can assess ten factor tests with the benefit of hindsight but how is he supposed to bust through the ten factors and five seconds and decide whether this is excessive force and that's what qualified immunity it seems to me is all about yes it's about avoiding officers using the heat of the moment their own personal anger at somebody and what happened to use she was in a car with it he didn't she didn't jump and put her foot in him like that then he spread her with a little pepper spray none of that was about i would i would say objective lee reasonable force court that the message that would be sent to law enforcement officers should the district court be overturned would be much more dangerous and threatening than that the message would be that officers can't control the scene in which they're trying to effectuate a lawful arrest  the message would be that what the supreme court has said and what this court has said on many occasions which to quote is that the risk of harm to officers is minimized when police officers exercise unquestioned command of the situation the message would be that that rule of law doesn't apply anymore so can i ask you a question so and i want mr sherrod to correct me if i don't have this quite right because i want to i want to represent his position fairly but i think i understood him to say that sort of yes a public street but once you're on private property sort of the rules of engagement change i have heard that as well and i don't think that that's a fair statement of the law and it's also not a fair statement of facts but this was a traffic stop this case began with a high speed chase when the when the chase ended it was because a motorcycle as you can see in the video told inexplicably to the officers view off the road they had no reason to know what he was doing what house he  was at had no idea this was his family home and so it was a traffic stop and there's no case law whatsoever that limits the authority of officers to control a situation to a traffic stop in fact michigan the summers in which that quote that i just if you came from was it a case involving an arrest warrant at a house or a search warrant at a house i may be wrong had nothing to do with a traffic stop so instead of complying with with the officers order and i want to be clear to about you know there's some question asked as to what was the basis for the order ok again the officers don't know why he picked this house so they don't know if he picked it because they're going to get ambushed by this person who's standing on the porch they don't know that she related to the person in fact she said nothing and if you look at exhibit three to the plaintiff's deposition you'll see that she's directly in the line of fire well you're you're right that she said that ultimately but when the officer gave the initial order when deputy saying said go back inside she had said nothing at that point in time it's very clear she was directly in the line of fire the deputies on the scene had pulled their weapons and were pointing it at an individual who had violated every traffic law in the book and so when she did speak up and she said that's my son to quote her husband she quote came unglued ok she just outright disregarded the order that had been given that's what her husband testified to her behavior the totality of her behavior on that day is exactly what gave rise to the reason to arrest her if she had just gone in her house and by the way her husband did that he just backed up into the house he could still look at what was going on she could have done the same and she would not been subject to arrest but she can't ten one of one of these three statutes which clearly applied and said she could be arrested for resisting or arguable probable cause to arrest her for what about the excessive force well when we look at the facts  and those facts support excessive force and whine that the officers get qualified immunity if there's an issue of fact about whether or not they used excessive force simply because there is not an issue of fact as to whether she is excessive force will give her every fact that reasonably appears in her favor in this record and as you stated a moment ago your honor the right to make an arrest necessarily carries with it the right to use some degree of visible coercion and not every have pepper spray necessary well your honor actually it's funny that venue is the wells and is the case that plaintiff side is clearly establishing the law against using pepper spray in the situation and in fact venue it is the case that suggested that pepper spray is a reasonable thing to do when a person doesn't get in a vehicle and the video clearly shows she many seconds and vineyard were involved because it's gory seconds here from the time she plants her right foot inside the back of the patrol car three seconds later she gets what she contends is a spray of pepper spray isn't there or a little bit of time for compliance allow vineyard over that was a three second spray of pepper spray no i'm talking about between the command i see and a fact awaiting the actual facts only if i say get in the car and one second later hit you with a bat i haven't given you time to comply there has to be some compliance time reasonable in this case to only afford three seconds for compliance for what appears a video to be slightly overweight middle aged woman with their hands up behind her shoulders to get in all the way into a patrol it is reasonable it's reasonable for multiple reasons for one thing they still got an active saying they need to get her in the car as quick as possible she's already slowed them down secondly she has been when you say an active scene how much the there's five or four officers on site at that time and well there's four officers i believe at that time and there's multiple people in the house who they haven't been able to identify there's an individual who's just completed a high speed chase so in addition they walk into the car she knows where they're going she sits down in the car she she clearly doesn't put that second leg again the officer has time to both order her to do it she's still not doing it he then has to on holster his pepper spray pointed her even when he's pointing it out or she's not doing it not until after he that was apparently so minimal that she never even asked for any anything related to it never complained about it used in a circumstance exactly as this court instructed officers to use it cannot possibly give rise to denial of qualified immunity is it your just one of the factors we look at well if you were to speak of de minimus injury but the doctrine is broader than that the man that i'm talking about the injury which is what you referred to when you said she didn't ask injury is a component of determining whether de mini correct no in fact but pepper spray has been recognized as to minimize force f sighted circuit case specifically discussing that i believe this court is as well in getting back to the handcuffing again you know the court h specifically said that painful handcuffing without more is de minimus force well it is an officer not entitled to rely upon that decision to understand that he can use a hankering maneuver much less violent than the one approved in rodriguez with with significantly less injury that without jones testified that quote she was screaming at us the entire time should there be a jury that looks at the eleven minute video and makes the calculation for there were about twenty seconds that eleven minutes that she was actually speaking and when the jury need to hear the volumes the trial judge said her voice was angry disrespectful and displayed excessive volume of all the things that were going out in that yard that day the siren the motorcycle officer screaming where on that spectrum did miss ransom's voice actually fall i'm not sure your honor that tone of the voice makes a difference as to a quote her voice was angry disrespectful and displayed excessive volume but you're saying that didn't factor and i don't think that judgments order intended to pigeonhole that in any way order a little bit different than that i read it as saying that the she was arrested for resisting arrest based on the totality of her conduct which included refusing to go inside yelling stomping her f doing all of those things and distracting the officers from that what they needed to be doing which was to effectuate an arrest but you know the district court didn't even reach obstruction but obstruction is you know if i were writing on a clean slate i might have chosen obstruction this court in philips of the urban applied alabama's obstruction statute to almost identical facts it was a truck stop where an officer was trying to effectuate a traffic stop and a truck store owner kept coming up and  bothering the officers who tried to do it district court said that there was argue will probably cause to arrest him for obstruction of justice struction of governmental operations which is what he was arrested for and this court affirmed that as well that this is the same thing deputy deputy sherman was attempting to assist his other officers as backup on an arrest and he in fact had to divert his attention to dealing with mr ransome so that's another statute and that is perfectly on point and so we don't even have to reach you know whether a jury should evaluate her or her tone of voice or anything like that we also have disorderly conduct is a charge that could have been applied and there's i mean directly on point alabama court of criminal appeals decision  state where yelling loudly in the presence of only police officers is enough so and i could go on but there's multiple cases that would suggest that the dish report was correct in this regard so let me tackle a couple things first off you know again this was on a porch on private property certainly in some scenarios it is reasonable for officers to control people at that or on their porches you know we have to be flexible i mean i'm not trying to create any new special rule that she's exempt from any  police control but in the in the light most favorable to ms rantzen i would put to you that this was not a heat of the moment this was numerous police officers one  happened when this happened he was on his knees submitting to arrest he was in the physical possession of a deputy if not actually cuffed in the process of being caught with multiple officers including the defendant in this case who was walking towards the porch towards ms ransom and she did nothing to interfere with that arrest and nothing she did and the rule they're asking for that or that is that you know we sorter presume that any situation where there's an arrest means it's you know all these things that we fear and we want we don't want to deprive officers of the authority to deal with those things that they have to deal with that i do not want this court to send that message that that officers can reasonably deal with the situation but i also don't i fear for the a rule that says you know officers can claim they were distracted and claim heat of the moment and all these other things that a reasonable jury might disagree with that this might really be it a corner a reasonable jury not about someone who is interfering with anything manage the public roads they are under they are on private property the question is what gives them the authority to just demand you know if there is going to be a case this is be it's obvious that this is not a public disturbance this is not the things that these laws were designed to protect against and unless we just assume that you can't by your mere presence by you're coming out of your door if you don't jump and  you know when they say jump if you don't say how high you can be put in jail because this means that any time any citizen is in the presence of any police officer who gives them an order and they're doing something police then they will always be found the first amendment says that we have a right to you know that to speak ok we have a right to a oppose you know police authority that isn't not lawful so does that mean because at least resisting arrest and the disorderly conduct here and i guess the obstruction of government elaborations as well all of those sort of inherently deal with police orders so are you saying each of those statutes is unconstitutional so absolutely all about i'm sorry no no at least as applied here they're all unconstitutional this has nothing do with consciousness now i mean you don't have the first amendment we have a right to speak we have a right to oppose police you know police directives unlawful police direct they are the sumption here is that they are dealing with a difficult situation so we're to cut them some slack a reasonable jury conclude this was nothing to do with a difficult situation this was not a person who was threatening them this is somebody you know it could have been a neighbor it could have been ten people that they could order ten people on a block who came out and disturbance every time something happens with the police were saying the police kind of go what are you getting your house you get in your house and then they can send all the  who refuse to go in they get out their video cameras because i think the that's wrong unless they say that she was interfering she had a first amendment right first offer she probably another right to be on  property but she had a first minimum right to watch and not interfere every single case that they wanted to involve people getting into the police officers says there's everything and even those cases sometimes say you know you have a first amendment right to ask an officer a question to say fuck you i live here there's a specific case from two thousand and sixteen unpublished