the honorable the judges of the united states court of appeals for the what circuits oh yea oh yea oh yea all persons having any manner or form of business before the honorable the united states court of a thank you your honor may it please the court dana lobby and i represent mr brooks mr brooks was handcuffed and surrounded by six officers when sergeant johnson taste him three times in a minute and ten seconds for passively refusing to have his photo taken the district court dismissed sergeant johnson from the case for failure to properly serve and then granted summary judgment to captain jack human an officer flood finding that there was no excessive force in this case this report also made several procedural errors including refusing mr brooks the ability to him in his complaint to properly include sergeant johnson refusing him access to the use of force and taser policies of the prison facility and refusing him access to counsel for all these reasons this court should reverse the district court now turning to the excessive force issue sergeant johnson violated mr brooks eighth amendment rights when she tastes him while he was restrained three times and captain jackman an officer flood are liable as by standards for failing to suggest supports that there was a subjective intent here too to for there to be punishment actually any of the tasing is are not justified because in order for a tasing to be proportional force there needs to be an immediate physical safety  say that as a matter of discipline you came for taste yes your honor mr brooks cannot decide what lawful orders he can follow but this court has held that a taser is only proportional force when there is a physical safety risk present that's under the fourth amendment right yes a different standard yes you are the fourth and the fourteenth amendment do apply different standard but only in so far as there is subjective element to that standard right that there is evidence here that that this was not a good faith effort to maintain or restore discipline actually looking specifically to the facts of this case mr brooks is alleged that sergeant johnson said he thinks he can come into our county and do what he wants i'm not going to tolerate it that evidence s an intent for this to be a punishment actually all the officers talked about how mr brooks was difficult upon a writer writing to the christians as you just said what what what do you think or what is your position watch of the officers have done facility where mr brooks is actually out of house they could have at least threatened to file that disciplinary report if they actually believe that mr brooks was a physical threat they could have applied ankle restraints they could have applied waist restraints but they were trying to and the court noted that the officer did try to get the pretrial the taney to to listen to reason and apply her safety restraints in the vehicle but when those attempts failed he was still not only difference between the eighth and the fourteenth amendment is that there is a subjective requirement the objective requirement is met here you cannot tase someone unless there is immediate physical safety risk the court the district court itself actually found on page nine hundred eighty four the mr else well your honor the statement by sergeant johnson and indeed if you just look at the video the second tasing came only sixteen seconds after the first season while mr brooks is on the ground and still shaking and trying to recover himself  that evidence is that there is no attempt to enforce and restore discipline mr brooks was incapacitated entirely actually this court in myers stated that force justified in beginning of the collar of an encounter is not justified even seconds later if the justification for the initial force has been eliminated that is a fourth amendment case but the principle still should stand in the eighth amendment context clear that the focus here is own subjective opponent of the honor is our position of the objective component component is met because of the precedent surrounding tasers finding that a taser should only be applied when there is a physical safety risk i thought the objective component was whether you know had to do with the injury continuing your are looking through the weekly factors with what this court uses to analyze eighth amendment excessive force cases we also need to look at the necessity the need for this application to force the policy that the district court considered and that the defense i'm going to tase you again and before he was given the opportunity even to respond she taste him again showing that there was no good faith effort to actually compel his compel his compliance seems to be some discrepancy between magic description mr brooks lying on on the floor almost in the fetal position still trying to recover himself from the second tasing is issued how long was he on the flu for sixteen seconds was the difference between the first pacing and second tasing he was still  to trick cover himself your honor and he said that the pain in his knee and throughout his entire body was very extreme so he was trying to and indeed this court has held that a tasing causes extreme pain so he was trying to recover himself for that second tasing if we agree with you that there was a constitutional violation here what is your best argument for saying the right was clearly established well your honor all of the cases through the fourth and fourteenth amendment  tasing somebody in a penal institution well your honor we matter of discipline yes we go over that for well we've we've decided so a couple of a theme in the cases that are instructional this is a matter of first impression for this court there's not been a shreve which is this court's case in two thousand and eight an inmate was instructed to put his hands out of his cell behind him and said you put them out in front of him they use pepper spray in that case and they pepper sprayed him multiple times the court noted in that case that the inmate was sila not confrontational during the time in the last pepper spray was again while the inmate was on the ground in his so those facts are extremely similar to the one here both pepper spray and tasers are used to incapacitate an inmate wall policies three different times all going through the would be factors to say these officers acted in violation of those policies and so they knew no reasonable officer could assume that they were acting in accordance with them but you know there's a big difference though but don't you have to rely on seems to me if you're relying on the peppers case then aren't you necessarily saying to us well if pepper spray is a problem then the taser has to be a problem and is that the kind of legal construct that clearly established fits within your honor that is that is one argument that we make but we would rely more heavily on in  receipt of on strong which admittedly is a fourth amendment case but in receipt of armstrong says our president makes clear that tasers are proportionally of proportional force only when deployed in response to immediate danger in a footnote in that case they say context too and maybe you can help me where the violation itself has this subjective component so for there to be a violation an officer has to use force in bad faith basically maliciously sadistically in order to inflict pain how do you graft if there can be sort of an objective telling if it forces applied in a wanton manner and you can look to clearly step precedent to see when other force being applied has been found to be watchin or that when the subject of requirement has been met but i mean it's clearly established right that officers can't use force sadistically in a pretty much they can't use it in bad faith that much is clearly established disputed material fact about of the mind state of mind of sergeant johnson at the time that this hazing was happening mr brooks should be allowed to at least carry his claim forward in that respect and the fact that he was not able to have the use of taser that would probably help them in terms of state of mind absolutely your honor it could have come out in the end in favor of the officers in this case but this court could find based on the information we've been talking about so far that there was excessive force in this case it should not be able to find though that there was no excessive force being able to turn to the very policies the officers themselves are instructed on they if they were acting in violation of those policies it would not make sense for them to then say that they had a reasonable good faith reliance that they were acting within the bounds of the law and acting within the bounds of their own all the court never even assault those policies mr brooks never had access to the policies now they claim that there was a a necessity keep the  prison safe and keep everyone safe within the prison and of course prison safety is valid consideration but at least the court can do in camera view and redact any information that isn't pertinent to mr brooks is claiming this court is seen as i said before i go disagree with wait wait a minute listen to what i'm saying even if the first tasting arguably was to get the inmate to cooperate with a lawful directive how does tasing someone when he is on the floor knocked off his chair how is that a good faith effort to maintain discipline it j a twenty nine mr  that after he was tase the first time he attempts to pull the problems out of his legs so what if he pulls the problems out then they've got no other recourse other than the taser and as other than to get physically on top of this guy he was handcuffed i don't understand what the security issue was this man was handcuffed there were six officers around and he had arm even taste once had been knocked to the ground and there was a need to to fire this electronic weapon to second and third time he was resistant the entire time passively but still resistant these could he have cooperated while he was lying on the ground and how could he even have gotten his head into the photo frame i don't understand what you mean he was resisting he's lying on the ground before they could get him up off the ground he's trying to pull the problems out of his leg so they tasered again to prevent him from doing that so that they could do is that anywhere and just as sergeant johnson say that's why she tastes in the second time i don't believe sergeant johnson you can tase him again they've already been unable to get him under control in the first place you know he's all under i'm sorry he's under control and that he's in handcuffs and surrounded by six officers they've been i mean they get him to hold his head seven minutes of fertile directives i mean the video starts we see seven minutes they clearly since it was all going before that there's verbal directives these these officers are patiently and deliberately escalating the force very slowly  penal institution we use tasers as the very first disciplinary sanction we apply and you should use it if someone had hold their hand still further well that would be a good fat under the subjective test so so i'd worry that if this were favorable a subjective standard what were these officers thinking when they use the force and so it would certainly be a helpful to the officer so how we supposed to know which way this policy kind of since it's never been produced it's not the record what the policy states  designed no that's my concern i don't think the policy is as relevant as the fact of the past case law in the actions of the video that we've seen i think we can make a determination without a policy whether it's good or bad for either side but we've got cases  look if the policy is pretty is i don't think it's going to change the fact it's not going to change the analysis of the court performed in five years no constitutional violation we don't need to get to the clearly established law because he found that there is no constitutional you can't be able to assert that a valid of policy was malicious i understand the policy is relevant i just don't think that a policy is going to try the case law in the first place well ok let me ask you about the case of and so assuming hypothetically that just having watched the video i find it i think that maybe it was a jury question on the second thirteenth whether those were  used to compel compliance or to punish just because i think a reasonable jury really just the same as a reasonable jury might be able to infer that if the intent were to compel compliance he would give this guy managed to collect himself and actually change its mind sort of re just if if that's a jury question and again i'm just asking you to assume this hypothetically doesn't it also at least khalid to question was the purpose of the first use of the teaser if the jury could find that the first time they used it and then twenty secondly twenty seconds later how to define it i think that second tasing was performed because of the taser being held so i guess i'm asking you to just indulge me and my hypothetical so if hypothetically somebody thought before the first tasing there was an initial justification for that first evening which was to compel this inmate to sit still look at the camera for a couple seconds after seven minutes of that not working as are talking joe there's one officer times ten times if they didn't back up and gave him the meaningful thing as had as a fifty seconds and he still moving his head i would think that if they put him back in front of the camera and gave him another meaningful opportunity to comply with their orders and he get to need to resist and yes it would be allowed to tase and they get a good taste and totally died essentially right under your rationale i don't think so i don't think fit at what point would they have to stop say he's just keep he keeps moving his head it's either an effect of the teasing origins doing it on purpose for whatever reason his head is still moving they can't quite get it in frame how many times can they take some i don't know the answer that question but it seems important i think so i don't think that obviously deadly force could be used in a situation like this i mean the they're just trying to get a photo i do understand that but at same time officers are allowed to use force to  do we consider the fact that the obedience that was being compelled was to take a photo when he was on his way out of this institution he had already appeared in court they had a photo of him that was three years old and they wanted not to date photo but to what extent do we consider that as opposed to a situation where he was trying to incite other inmates to do something it seems to me this is a pretty  situation where he was on his way out they already had a photo he was being a noxious certainly they could apply to report on him to give him some discipline where he's going to die and i don't know the adoption execution of prison policies it's been held in other cases that it's pretty important for prisons to have a photo documentation of what inmates are in their jail it would say was i had one they had one for three years ago and there nothing on reasonable about wanting a photo of what this guy looked like at the time that he was in their jail on that day is there any evidence in the record regarding whether his appearance had changed and they knew that they have this photo even though he was on his way out the door there's no evidence in the record and this is only taken all the way out the door because he was to all cooperated on the day he arrived the day before so they let him go to his p c army or the next day when he comes back they still have a box to check that they need to take this photo before he leaves the jail to get some kind of record of what he looked like it so they go back and they take him into the room and this whole event begins it's definitely a problem i mean i understand what you're saying they've got to do t any any any officer would have to know i disagree this is an obvious case after after they've let him avoid this policy for seven minutes they can't you can't let inma decide when they're going to abide by a policy whether they're going to the entire purpose of prison security fatals if inmates can just literally the only disciplinary tool these people have access to it just seems i feel that w many cases of it sort of escalated disciplinary sanctions like you file a report you can use warrants or you can go outside or worse case scenario you're in solitary confinement i mean i always thought that there were so escalated responses available to officers but not so they have prayed it's not going to be in an institution anymore he's going back to his home institution they can sanction him there take a picture and send it to you guys it's so important to have this memory of who used to be in your prison i've i think that that kind of idea of what they could have done differently is an exercise in twenty twenty hindsight they qualified immunity cautions us from doing in this case these officers were on the ground in a situation that was evolving so quickly even though they were doing their best  gradually escalate the force right that bit but there are cases i mean that the classic for a fourth circuit phrase is bad yes protecting officers from bad guesses in gray areas and i think the whole point of the questions here from the  situation call for it i think the gray area was the fact that they used a taser it wasn't until the foursome in the case in armstrong and then before that the fourteenth amendment or of the rest and where there tasers are being called into are certainly meyers happened before miers came out before this craziness in fires it was obviously fourth amendment right that miers had once somebody stops resisting the game's over you don't keep firing your weapon m has said that the initial justification for the use of force it's the scepter that third hazing they've their purpose was to seize him to arrest him they get him on the ground he's restrained there's no need to tase him seven more times also he died as a result justification because he's nel we're living again a justification that appears nowhere in the record i appreciate what's going on here but i don't see how we can possibly rely on that not one of the people in this case says that's why eighty seven the second time  just use a case in which individual that from the taste it's possible yes what's the difference with the pepper spray there's did there's different situations where pepper spray is appropriate where tasers are appropriate in let's talk about the use of think i believe that it is a different situation whether they're on the ground or not of the use of force is going to change depending on the circumstances and in any case understand you believe that's not responsive to my question my question is an individual i'd still use of force if he's totally motionless can i say about or i'm i know you keep you have said that that is a fourteenth amendment case but at the time isn't it true that the fourteenth amendment standard was literally identical to the eighth amendment standard it was w thank you your honors to address judge wins point about a reasonable opportunity to respond in his initial complaint mr brooks says that sergeant johnson tells him why he's on the ground that she is going to tase him and then tase him immediately without giving him any maybe don't need it because it was a different justification he's trying to put out the prop so well your honor to address that point actually if you look to page twenty nine of the record which is what the defense cited that's mr brooks is complaint he actually says that he tried to pull out the problems pulling those from no your honor this we see i could not see any clear it is not clear at all as to whether or not really on camera there at that time is the while he's on the ground your honor you can see him on the ground time you see his head yet what you can see him lying on the ground there are also officers standing around him you know i see his full body but he didn't you could see his full body no you can't see that is full body during this time so it's unclear whether or not he ever tried to pull the that and talking about the escalation of the use of force the amount of time they spent talking with him before the first application of force it would be much easier to know what the proper escalation of force would be if we had access to those use of force policies and we would be ok with the re mandating for review of those policies but we do also believe this court could find on the a excessive force of qualified immunity issues senator schumer review b brooks was entitle to counsel so his counsel could have reviewed this additionally your honor the district court should have a lot of mr brooks leave to amend his complaint to include sergeant johnson in this case the actual person who taste him and  already pointed this out we have a lot of cases that talk about these prison policies that right there a third say yes i don't understand it would get up to all of those raise risks to prison security asa your honor if they did then the court didn't find those to be reasonable prison policies there the exact same policies we presume that are at issue here were put into the record and were used to find that case so there is there is ample evidence in the record that are in the record in case law that these policies should have been should have called out sergeant johnson should have been included in this case mr brooks made every effort to include her in this case he just misspelled her name called her lieutenant johnson instead of sergeant johnson and his initial complaint and then when you discovered his mistake he mailed both the district court and the marshal service trying to get her included in this case and still the district court refused him the opportunity to him in his complaint or  they did grant an extension of service that constricted the amount of time he had to to serve earlier than the statutory limit for those reasons this court should reverse and fight in favor of