and i am here this morning representing the appellant corporal blank devlin with the pennsylvania state police and your honour's are arguments in this case is straightforward corporal devlin is entitled to qualified immunity in this case based on an analysis of the i mean the clearly established in those cases and simply in this case that standard is not met there's no controlling precedent that would have put him on notice that his actions that night of having  wife get out of the vehicle during this incident was unconstitutional mr meeks your your high level overview is certainly accurate the court has been increasingly strict about cautioning the lower courts not to define the right at too high a level of generality but but why in this case isn't abbott v latch directly on point doesn't that case stand for the proposition that a law enforcement officer is not allowed to intervene or take sides in a private repossession like the one here well your honor that maybe the general statement of the law but as you know i'm sure the court is aware when we're looking at the nd prong we look at the precedent and the facts of the precedent and compare it to the cases or the situation that we are here and i think you know just the point that the court to a recent decision and james the new jersey state police that case was a shooting case right it was a shooting case your i was and there was a man who was distress that had a gun in his hand and was suicidal and the police shot him right on it but i don't have much to do with much with the repossession right well the analytical framework and how the court reached  determination that case i think is important and instructive of how the court should really go about and analyze that case because the questions are qualified immunity town on one of the court compared to the bennett case of priest and off knowledge the distance between the officers the level of compliance so even though it was similar in that it was a shooting case involving a police officer and a non compliant individual those specific factors those nuances really turned the question and so  we're looking at this case and you know looking at the nuances and comparing it to to the abbott case and the advocates there was no you know both sides in this case called for a police presence they both wanted to police to resolve the situation and so obviously you know if there's an officer there for peacekeeping purpose that's fine but he says you know look these gentlemen do their job and also he threatens to remove her if she doesn't comply that does that go a little beyond just a peacekeeping function well your honor i think we must keep in mind the situation that he was presented that night he doesn't he has to resolve this situation you know at the time and like i said it's a dynamic situation you know perhaps you know maybe different decisions could have been made but you know there's nothing in the case law where there's no cases that tel because i know that's the case and so can i am sorry can i just interrupt for one moment the questioner certainly on you said you said perhaps different decisions could have been made that isn't at the heart of what the jury found here what the district court was ultimately deciding on the request for or qualified immunity that there was a an absolutely different decision that could have been made which was to keep the peace to return the parties to status quo to remain neutral in the decision making process but he didn't do that right and so i'm still not following why that isn't significant under the prior decision well i guess your honor to be clear we're looking at the abbott case and i guess that's the case that we're dealing with it's only you know it's a husband and wife situation you know there's no bank involved is no tow truck involved you know both parties are on call calling for a devlin or any other reasonable officer it's not exactly clear where where it sounds beyond you know it's a substantial eight you know it is it is it just a threat or is it the actual address and that case that went all the way which is a little bit different so i don't know if it tells us exactly that these actions are unconstitutional mr meeks isn't it a problem for you that this went to a jury many of the the supreme court precedents regarding qualified immunity were or cases that didn't go to a jury and here we have to view the record in the light most favorable to the verdict later ms hileman you'd agree  so don't we have to assume you know we're not the fact finders don't we have to assume that the jury found that that ms hyman was telling the truth and ms johnson was telling the truth when he said that the car was not in fact hooked up so to judge made his point about the status quo corporal devlin could have just said look ms johnson is in the car and you don't have the car ho so you're not going to be towing the car and especially in light of the admissions during the trial the corporal devlin and the other officers made that they have to avoid a breach of the peace situation and once they have a breach of peace or as corporal devlin testified a disturbance or a situation isn't it incumbent upon them to resolve the situation by just sending the tow truck driving away i don't think so necessarily your honor it's like it's a scituate i mean the police are called by both parties because they wanted a resolution to what is happening in this case and so you know the st officer didn't know what to do he has the call a senior officers due to the uncertainty of how the situation should be handled and so when corporal d to rise he makes the you know that they're sensing the situation he makes the decision that he believes is right and that decision was that an individual that was barricaded in the vehicle remove herself from the vehicle and i think you know even though the this case but doesn't yuri doesn't the jury instruction articulate what the clearly established law was at the time there was no objection to the jury charge and the jury charge was that if the jurors the corporal devil and was a principle reason or a cause agent for the repossession then that violated clearly established law wasn't that what the jury was charged to decide i'm not i'm not sure your honor i'm not you know from ours i can't say with certainty that's what the jury was charged with but you know when we look at these cases the prior precedent cited by the district court they don't have the factual specificity that has been ended by the supreme court  in these particular cases so there is no objection to the jury charge by your i know you are a trial counsel mr barr for k z i guess was but there was no objection the jury charge right well your honor we certainly  be better instead the constitution only prohibits injuries pineda damages or if it is so grossly excessive that it serves no legitimate need as the supreme court explained in gore most cases won't meet the standard serve only being in fact two cases in which the supreme court has overturned a jury's going to damages award on constitutional grounds and in both of those he says it was for fundamentally deagle reasons so in state farm the beagle problem with the juries award was that it punished conduct that was entirely unrelated to the claims at issue in the east and it did so it was conduct that occurred in other states where it was legal and what the supreme court said was you know it can't be that one state can regulate conduct in other states where it's legal and it has no relation to the actual cleans in the lawsuit similarly and or there is a fundamentally legal problem with the jur of reprehensible conduct and st step would testify if you knew that it was unconstitutional for a law enforcement officer to even a repossession in other words he knew what he was doing was unconstitutional and he nevertheless defendant who knew that it was unconstitutional to do what he was doing to use threats of violence and arrest against an innocent woman to do it and who said if given the chance he would do the same thing all over again the jury certainly could have believed that strong medicine in the words of gore was necessary to hear this defendant's disrespect for the law and nothing in the constitution prohibits it from doing so because better what do you make of our state in the case of willow in versus public service two thousand and five rd circuit case where we observed that quote few awards exceeding a single digit ratio between punitive in contempt compensatory isn't a grievous harm that is not measured in compensatory damages and in those cases because what the real relationship we're looking for here is between punitive damages and harm you know actual or potential harm and if the actual or potential har shared by the punitive rather by the compensatory damages and so for example in the he's a violation of a constitutional right which is not compensable and that's a trade damages the harm and the potential harm is going to be much greater than what's reflected in the compensatory damages and sort of ratio between the punitive damages compensatory damages and those kinds of pieces is expected to be much higher and there are several several races as you say in our brief where this is exactly the case simply always be too small to deter i only sense of constitutional rights but the district judge didn't necessarily agree with your sense of how agree just this mistake was correct so you know obviously the district judge said that it was reprehensible enough to support a punitive damages award but not severe enough for egregious enough to support what he apparently viewed as as a runaway award of half a one million dollars what was it that the district judges take on their it's not entirely clear to me honestly from the district court's opinion why exactly the district court the problem  required some sort of you know personally targeted motive like he did this because he hated the plaintiff in particular as opposed to he intends just he intentionally violated her constitutional rights and that's not great under under gore which can turn to that potential harm now which is you know if it had to i had not evangelist life rather have not complied with devon's unconstitutional threats and then there's the jury can easily have believed that he would have followed through on those threats he would have broken the window he would have forcibly removed her and would have arrested her for a crime she did not commit well that's actually a question that i have above sure respect to potential harm to johnson and how does that fit in in  jury could reasonably have believed that he would have followed through that it was basically happenstance that he didn't and the nd is that it can be used in determining the reasonable relationship between the amount of punitive damages and the harm in potential harm  and so the fact that it was if it's basically arbitrary it has nothing to do with devil and the fact that he did not and this he's break a window assault a woman and arrest her for a crime that she didn't commit simply because angela was wife comply and so the jury could reasonably believe that it needed to deter this conduct to prevent that harm from happening to someone else and there's nothing in the constitution there's nothing in the constitution of a punitive damages at all but the certainly no hostage to tional values but i can think of that would require don't prohibit a jury from awarding punitive damages based on the need to turn this kind of conduct simply because of the happenstance that in this the st reason is that philip morris you know says we're only talking about doing breast hunnish meant we're saying that the jury cannot directly punish you for harm to strangers civil litigation but it doesn't say anything about the reasonable relationship whether you consider that harm in the reasonable relationship and in fact the jury instruction that philip morris was asking for was a jury instruction that would have considered harm to others in the reasonable relationship analysis relationship test as long as you don't drive consider it for direct punishment and so philip morris has at best nothing to say about it and if anything it indicates that it is permissible to do so and the nd thing is i want to know that  comply that's a very different situation none of the values that underlie philip morris involving strangers motivation even a five year and there's nothing in the constitution nothing in the supreme court's he said that's has anything to say about when there's no legal error unlike the r c farm and for that reason justice is the lead and thomas dissented from this whole project and said look this is basically a values question how raw was the conduct and how much in need of deterrence is it  and those are those are questions that we give to our jury he's in in our in our legal system and it does you know if there is no legal error the procedures are fair and there's it's really difficult now we're only way a court can can decide  the line drawn should be especially in he says like this where there are no constitutional values on the other side there's no way that the court the court has given us the i mean i understand you're making you're making  originalist argument about there being no constitutional values here but state farm and gore the supreme court has told us otherwise right the supreme court has said look there's nothing in the text that says a single digit ratio or six to one ratio you know the court one could argue just made that up right but isn't it incumbent upon the district judge here and this circuit court in this appeal to apply d that that factor that that sort of that ratio i don't know if you call it a test or what you call it but but isn't that wasn't that the district judge's job and isn't that precisely what the district judge did here so it is i absolutely agree that it is the dis job and this court's job to apply supreme court precedent and that one aspect of supreme per precedent is assessing what the relationship is between punitive damages and harm or potential harm but it is not where the district court erred is a focus particularly on the relationship harm you know it to the compensatory damages do not accurately reflect the potential harm and therefore the need for deterrence in that case simply because the defendant's plan did not come to fruition and that's exactly the case here the to come to pass as here you take that into account determining what the relationship is between the punitive damages and the actual or potential harm and to not do so would be to expand this constitutional right well beyond with the supreme court has part of the constitutional violation itself similarly there's no concern about one state regulating the conduct of another state again and if he's for the harm to the rd party's injured really related to the constitutional violation itself is a link nothing in the constitution qualified immunity or up with this can you still fall within the scope of abbott if devlin actually believed he needed johnson out of the car in order to protect passing motorists protect angela and in that light where there is lots of testimony that there was no you know his main safety issue argument is that the car was lifted off the ground so you have to get her out but there's a lot of testimony that says that's not true and so and so under  protect the real reason the safety of individuals would recognize that is something that they can say please as far as the punitive damages one we do disagree that know the actual harm as a fixed by the jury was five thousand but their argument as i understand it is that they can also argue potential harm in that they're arguing that the potential harm was two hundred and fifty thousand right honor and it's all based on speculation like these these harms didn't actually occur we don't know if you know corporal devlin like if you look at the video like he's not raising his voice he's he's trying to get her out of the video or out of the out of the car say he was using verbal judo and he had no intention of physically removing her he thought he could coax her out of the car and he was successful but do we do we accept that is true that's our question because the jury did not need to disbelieve him i don't think to rule in his hymens favor but the jury may have disbelieved him when he said that maybe the jury thought that he really was going to break the window and he said he was going to break the rear window away from johnson well yes and i think that's  and you know seeing a court doesn't grant qualified immunity in this case the district court and i don't think we should lose focus of the big grant punitive damages in this case and granted i'm at a six to one ratio and the district court went through the gore factors he went through all each of the relevant ones and explained his reasoning on each factor and you know although the pelly may disagree with the district court's findings are not clearly erroneous and that is the standard even though the court has review that's really the standard that the court applies in these punitive damages cases and you know i would point the court to a decision i believe that came out last year just cut where the court found the district court and you know it is the court's duty to you know guard against you know these unconstitutional words and that's what the court did in this case as far as represents ability the st factor is that is the actual harm it's very unclear what what the physical harm was to ms hyman and her own testimony she says that she's not blaming corporal deadline for the physical injuries that that happened to her so how is the quality to which she she wasn't blaming the inability to sleep things like that right i don't think the record is clear on that your honor apparently miss hyman had issues with police officers in the past obviously the situation could bring up the different things but it's unclear and is this is what th found as well exactly where these harms arise out of and so that you know the factual findings of the district court and i don't think that they're clearly erroneous given the testimony of ms hyman and so you you council's right thank you we will take the case under advisement but before you go we want to thank you for your excellent oral advocacy in your excellent briefing here it's good to see you i hope you enjoyed the