[00:00:23] Speaker 00:
Good morning, counsel.

[00:00:24] Speaker 00:
Good morning, Your Honors, and may it please the court?

[00:00:26] Speaker 00:
My name is Ashley Caballero-Daltrey, and I represent the defendants and appellants in this case, the City of Phoenix, and the defendant officers.

[00:00:34] Speaker 00:
I would like to reserve two minutes for rebuttal, and I will watch my time.

[00:00:37] Speaker 00:
Thank you.

[00:00:38] Speaker 00:
This is a case involving allegations of several disparate interactions between police officers and decedent Timothy Lopez.

[00:00:46] Speaker 00:
In front of this court is a narrow issue involving just two pieces of that interaction.

[00:00:50] Speaker 00:
The placement and transportation of Lopez

[00:00:53] Speaker 00:
in a police vehicle for the express purpose of getting him off of the hot pavement, out of the sun, and into the shade for medical attention.

[00:01:01] Speaker 02:
Counsel, before you get to the transportation, what about the restraint?

[00:01:06] Speaker 00:
So the restraint in this case was already decided at summary judgment by the district court and isn't on appeal at this time.

[00:01:12] Speaker 00:
One of the particular uses of force was the application of that rip restraint, and the district court held that gave summary judgment to the defendants for

[00:01:22] Speaker 00:
all of the uses of force up to and including application of the rip restraint.

[00:01:27] Speaker 02:
And so that's not on appeal?

[00:01:28] Speaker 00:
Correct.

[00:01:28] Speaker 00:
That's not on appeal at this time.

[00:01:30] Speaker 00:
We're only looking at those two uses of force, the placement and the transfer.

[00:01:33] Speaker 04:
What about the knee?

[00:01:34] Speaker 04:
I thought the district court also found that there was excessive force for the use of the knee after the restraint was put on.

[00:01:40] Speaker 00:
That's correct.

[00:01:41] Speaker 00:
And the district court found that that would go to the jury, not that there was excessive force.

[00:01:45] Speaker 00:
And you're not appealing that?

[00:01:46] Speaker 00:
We're not appealing that issue, no.

[00:01:47] Speaker 00:
We're only appealing the limited

[00:01:49] Speaker 00:
placement and transportation, because those are clear issues of law that can be decided by this court on an interlocutory appeal.

[00:01:55] Speaker 01:
Now, counsel, and I know you're framing this as narrow issues, but under Graham, we have to consider the totality of the circumstances, correct?

[00:02:03] Speaker 01:
Correct.

[00:02:03] Speaker 01:
And so as we're evaluating the qualified immunity claims, we're looking at everything up to and including movement, you know, the placement of the decedent into the car and rep restraints and the transportation.

[00:02:18] Speaker 01:
Would you agree with that?

[00:02:19] Speaker 00:
I would agree with that if Graham, in fact, applies.

[00:02:21] Speaker 00:
But it's defendant's argument that neither the placement or the transportation is a proper excessive force claim.

[00:02:27] Speaker 00:
There might be other claims that would cover each of those actions.

[00:02:30] Speaker 00:
But because it's not a use of force, because it's not an excessive force claim, it isn't analyzed under Graham.

[00:02:36] Speaker 01:
Why is it not a use of force claim, restraint?

[00:02:41] Speaker 01:
I mean, you know, the text of the Fourth Amendment says an unlawful, an unreasonable seizure.

[00:02:45] Speaker 01:
This is a seizure, isn't it?

[00:02:47] Speaker 00:
Yes, Your Honor.

[00:02:48] Speaker 01:
So why would we need an additional use of force beyond the reasonableness of the seizure itself?

[00:02:55] Speaker 00:
Every use of force is a seizure, but not every seizure is a use of force.

[00:02:59] Speaker 00:
That's exactly the issue with the placement and the transportation.

[00:03:03] Speaker 00:
For example, a person might have a claim that an officer put them in the back of a vehicle without probable cause or without reasonable suspicion.

[00:03:09] Speaker 00:
They could sue under the Fourth Amendment, and we would be analyzing whether or not the officers had probable cause or reasonable suspicion if it's a brief detention.

[00:03:16] Speaker 00:
In this case, there actually was a false arrest claim, and the district court found

[00:03:21] Speaker 00:
that the officers had either probable cause or reasonable suspicion to detain Lopez.

[00:03:27] Speaker 00:
And so that's the kind of claim that a person could bring.

[00:03:31] Speaker 01:
So a rip restraint, they've used the word hog tying in the briefing as well.

[00:03:36] Speaker 01:
I guess after a person is handcuffed, there's an ankle strap that attaches to the ankle, and it can bring up a person's legs.

[00:03:46] Speaker 01:
That seems like a significant amount of force in terms of what it can limit someone from doing.

[00:03:51] Speaker 01:
Why is that not a use of force as a type of restraint?

[00:03:55] Speaker 00:
The restraint itself is a use of force, but the district court granted summary judgment on that use of force.

[00:04:00] Speaker 01:
Only on the initial use of force.

[00:04:04] Speaker 01:
continuing to maintain him any rip restraint during the placement in the car and transportation.

[00:04:12] Speaker 01:
But we know from cases like County of Los Angeles... But can you just go back to why isn't the use of a rip restraint itself a use of force if it substantially limits a person's ability to move and actually places a lot of pressure in their own body weight on their chest, right?

[00:04:27] Speaker 01:
It creates the risk of a positional asphyxiation.

[00:04:30] Speaker 01:
So why isn't this force?

[00:04:32] Speaker 00:
Because I see those as two separate actions.

[00:04:34] Speaker 00:
The application of rip restraint is a use of force that is an action that was decided by the district court.

[00:04:40] Speaker 00:
The placement and transportation is a different accent.

[00:04:42] Speaker 02:
Council, could we just talk about the facts that you are referring to when you say placement?

[00:04:48] Speaker 02:
What specific facts are included in the placement from your view?

[00:04:53] Speaker 00:
So the placement is when officers Mosley, Stevens, Jimenez, and Lingenfelter

[00:04:58] Speaker 00:
helped pick Lopez up off the ground and placed him into the vehicle.

[00:05:02] Speaker 00:
While restrained?

[00:05:03] Speaker 00:
While restrained, yes, your honor.

[00:05:05] Speaker 04:
Sorry, just to clarify that, I thought the district court split that up in that the district court said that lifting him up, essentially hogtied, is one use of force and then lying him prone in the car is another use of force.

[00:05:18] Speaker 04:
And I see the distinction between those two different uses of force.

[00:05:22] Speaker 00:
So the district court, let me pull up the specific page that this is on.

[00:05:27] Speaker 00:
The district court listed out the uses of force that it saw and I don't believe that it split those two specific uses of force.

[00:05:35] Speaker 00:
But let me just double check because I don't want to tell you the wrong thing.

[00:05:42] Speaker 00:
So if you look at the record at ER 18, so the district court lists on these numbered things.

[00:05:50] Speaker 00:
Number three is that they applied the rip restraint.

[00:05:53] Speaker 00:
And number four is they positioned him face down in the back of the police vehicle.

[00:05:56] Speaker 00:
That's placement, right?

[00:05:57] Speaker 00:
Yes, that's placement.

[00:05:58] Speaker 00:
But there's not what you were suggesting, Your Honor, that there was something between the rip restraint and then the placement.

[00:06:04] Speaker 00:
The district court didn't break those down into two separate things, and that's ER 18.

[00:06:08] Speaker 02:
No, I think we were talking about the placement as one use of force.

[00:06:12] Speaker 02:
I was talking about, I won't speak for my co-panelists, the placement as one use of force and then transporting as a separate use of force while he was restraining.

[00:06:23] Speaker 02:
What did the district court say about those?

[00:06:25] Speaker 02:
Did the district court address those separately?

[00:06:28] Speaker 00:
So it did break those two out into, as you said, the placement and the transportation.

[00:06:33] Speaker 00:
Just to Judge Bumitie's question, there wasn't a third piece that was lifting him up.

[00:06:38] Speaker 00:
I think that the district court looked at the lifting him up and putting him in the vehicle as all together on the placement piece of it.

[00:06:43] Speaker 00:
And that's how the parties had been addressing it.

[00:06:45] Speaker 00:
And then the transportation is the subsequent drive, that less than a minute drive around and over to the Walgreens.

[00:06:51] Speaker 01:
So assuming we don't agree with the notion that

[00:06:55] Speaker 01:
keeping someone in a rip restraint in a prone position is not a use of force.

[00:06:59] Speaker 01:
Or in other words, let's say we concluded that it is.

[00:07:02] Speaker 01:
Why do you think it was reasonable in order to be entitled to qualified immunity?

[00:07:09] Speaker 00:
So in terms of the first prong, the reasonableness side of it, it was reasonable because the officers really didn't have any other option.

[00:07:15] Speaker 00:
Lopez was resisting.

[00:07:17] Speaker 00:
It's an undisputed record that he kicked one of the officers.

[00:07:21] Speaker 00:
You can see on the Body One camera that Officer Mosley's camera falls onto the ground.

[00:07:25] Speaker 00:
You can also see that all of the officers are trying to ask him to stand and to walk.

[00:07:29] Speaker 00:
The officers testified that a suspect in a rape restraint can walk, even while rape restraint is applied.

[00:07:35] Speaker 00:
He did not attempt to walk.

[00:07:37] Speaker 00:
They tried everything they could to get him up.

[00:07:39] Speaker 01:
But why is that undisputed?

[00:07:40] Speaker 01:
Because I think plaintiffs are alleging that he was almost passing out at the time that he was being lifted up.

[00:07:46] Speaker 01:
And I think Officer Stevens's camera indicates that his head's rolling back.

[00:07:52] Speaker 01:
So it would seem to me that there are tribal questions whether he was continuing to resist after the rip restraints were applied.

[00:08:00] Speaker 00:
But even if he was not continuing to resist for the entirety of the time that they moved him, he did resist by failing to stand.

[00:08:08] Speaker 00:
He did resist by kicking Officer Mosley, kicking his camera off.

[00:08:10] Speaker 01:
But those are disputed questions.

[00:08:13] Speaker 01:
Officer Mosley's camera fell.

[00:08:15] Speaker 01:
I don't know that it's clear from the video that it was based on a kick.

[00:08:20] Speaker 00:
But the district court also based its opinion on its analysis that the defendants hadn't provided any justification for why they did.

[00:08:28] Speaker 00:
So it wasn't just that he was resisting.

[00:08:30] Speaker 00:
It was that the court felt that there was no justification for it.

[00:08:33] Speaker 00:
Because it is that totality of the circumstance.

[00:08:35] Speaker 00:
You have to balance all the factors.

[00:08:37] Speaker 00:
And so I think the district court's decision had a couple deficiencies.

[00:08:40] Speaker 00:
First, it didn't analyze the quantum of force that was used with this application of the rubber strain.

[00:08:45] Speaker 00:
So we don't know, are we dealing with deadly force?

[00:08:47] Speaker 00:
Are we dealing with intermediate force?

[00:08:49] Speaker 01:
But didn't it?

[00:08:50] Speaker 01:
I mean, the district court was bringing up the police department's training manuals and the fact that a rip restraint creates a heightened risk of injury and plaintiff's expert, specifically when there's been resistance and running and all of that exertion that occurred, as we see in the video, and then being laid down prone in a squad vehicle in the rip restraint.

[00:09:14] Speaker 01:
I thought the court was actually engaging with those facts that were supportive of the plaintiff's

[00:09:20] Speaker 00:
But engaging in those facts and stating what the actual quantum of force are two different things, and there can't be a constitutional violation just based on a violation of defendant's policies.

[00:09:29] Speaker 00:
We have to look at the totality of the circumstance.

[00:09:31] Speaker 00:
So those are some of the totality, but it also includes the officers testified as to why they placed him face down and set him on his side.

[00:09:38] Speaker 00:
They didn't want him to roll.

[00:09:39] Speaker 00:
We also have to consider the short

[00:09:41] Speaker 04:
But that was only during the front part, when they were on their asphalt, not when he was in the Tahoe.

[00:09:47] Speaker 04:
Even assuming that you're right, that he resisted while they put him into the Tahoe.

[00:09:50] Speaker 04:
They kicked the officer's body cam.

[00:09:53] Speaker 04:
None of that explains why they didn't put him upright while he was in the Tahoe.

[00:09:57] Speaker 00:
Officer Lingenfelter explicitly testified in his deposition that he put him face down because he was afraid that if he had put him on his side, well, he knew he couldn't sit him up because he wasn't sitting up.

[00:10:07] Speaker 00:
He couldn't put him on his side in the back because he was afraid that he would

[00:10:10] Speaker 00:
rolled down off of the seat and into sort of the foot well area of the back of the car and that is in the record.

[00:10:16] Speaker 01:
But I thought I thought the district court said that there's a way to secure a person even with a rip restraint by loosening it and allowing them to be upright in the back of the car.

[00:10:24] Speaker 00:
If the person is willing to sit upright and officer Lingenfelter also testified that often suspects will go limp in an attempt to be left in a certain manner so that they can attack people after they

[00:10:35] Speaker 00:
open the door, for example.

[00:10:36] Speaker 00:
But here, because he wasn't willing to sit up, they couldn't have secured him in the way that the district... Well, they never tried to set him up.

[00:10:42] Speaker 00:
They did when they tried to get him to stand and walk outside.

[00:10:46] Speaker 04:
Yeah, I agree with that.

[00:10:47] Speaker 04:
That's why... Not in the car.

[00:10:48] Speaker 04:
Not in the car.

[00:10:48] Speaker 00:
I don't... They didn't have the opportunity to do so because they'd already seen him failing to comply with campaign... They had the opportunity.

[00:10:55] Speaker 02:
They elected based on what had happened previously not to do it.

[00:10:59] Speaker 02:
They did have the opportunity.

[00:11:02] Speaker 00:
Officer Lingenfelter's testimony

[00:11:04] Speaker 00:
reflects how he was viewing the situation at the time, and that he did think those things through at the time.

[00:11:12] Speaker 00:
But also, it was a relationship.

[00:11:13] Speaker 02:
But that's different than saying they didn't have the opportunity.

[00:11:16] Speaker 02:
He had the opportunity, but elected to not take advantage of that because of what had happened previously.

[00:11:23] Speaker 02:
Is that fair?

[00:11:24] Speaker 00:
I think that's fair.

[00:11:25] Speaker 01:
I was going to ask counsel.

[00:11:28] Speaker 01:
There's a, as I saw the video, I saw all the videos, there's a, it seems as if there's like a plastic hump in the back of the Tahoe that he was resting on.

[00:11:38] Speaker 01:
Is that, is that a fair statement where not only was he lying prone in a ripper's seat in the back of the seat, but he was lying, his chest was lying or body was lying on top of a hard surface?

[00:11:48] Speaker 01:
Is that, is that correct?

[00:11:49] Speaker 00:
That's correct, Your Honor.

[00:11:51] Speaker 01:
So I guess I just go back to, I mean, there may be reasons for the officers to have done what they did, but it just seems to me that there are tribal issues involved in whether it was reasonable to transport him in this way and to even place him in that way.

[00:12:04] Speaker 00:
But even if there are tribal issues, they're still entitled to qualified immunity on the second prong, the clearly established case law prong, because there's no case dealing with these situations, the transport and the placement here.

[00:12:16] Speaker 00:
And in fact,

[00:12:17] Speaker 04:
I guess my question then though, didn't they all testify they knew that if you leave a defendant prone like that, there's an increased chance of asphyxiation?

[00:12:27] Speaker 04:
So they all knew the danger.

[00:12:30] Speaker 00:
But their training cannot clearly establish the law for constitutional violation.

[00:12:36] Speaker 00:
They understood there was some risk.

[00:12:37] Speaker 04:
I mean, if you know something is clearly dangerous and then you do it anyway, that seems like to be clearly established law that you can't do that.

[00:12:45] Speaker 00:
But this was only a short, less than two minute placement and transportation together, less than two minutes, for the express purpose of getting him medical attention and getting him out of the heat and off of the pavement.

[00:12:57] Speaker 00:
Because in fact, one of plaintiff's claims originally was that he was being exposed to the pavement.

[00:13:02] Speaker 00:
It was too hot, and that was harming him as well.

[00:13:04] Speaker 00:
So this was their best way of resolving the issue.

[00:13:07] Speaker 04:
Well, that still doesn't explain why they didn't try and set him up right.

[00:13:10] Speaker 04:
Can we get to your point that there's a distinction between the transportation and the placement?

[00:13:15] Speaker 04:
So the two officers that drove the Tahoe afterwards, we should be analyzing them differently, in your view?

[00:13:22] Speaker 00:
Yes, Your Honor.

[00:13:23] Speaker 00:
We do have to analyze those differently.

[00:13:24] Speaker 00:
They were pled as two separate uses of force in plaintiff's complaint.

[00:13:28] Speaker 00:
They were analyzed differently by the district court, and they involved... Well, I thought you said the district court analyzed them together.

[00:13:34] Speaker 00:
So the placement in the vehicle and the transportation in the district court,

[00:13:37] Speaker 00:
said those were two separate uses of force.

[00:13:39] Speaker 00:
It kind of mingled the analysis later in its analysis.

[00:13:42] Speaker 00:
The piece that I said it didn't analyze separate was picking him up off the ground.

[00:13:46] Speaker 00:
So picking him up and putting him in the car, that's one.

[00:13:48] Speaker 00:
Driving the car, that's the second.

[00:13:50] Speaker 04:
But I guess to me, so you're saying the two officers that drove the Tahoe and then when the front passenger seat should be analyzed differently than the four officers that placed him into... Correct.

[00:14:00] Speaker 00:
Correct.

[00:14:00] Speaker 04:
And then why should we treat them differently?

[00:14:02] Speaker 00:
It is a separate action under

[00:14:05] Speaker 00:
County of Los Angeles versus Mendez, this court has to analyze each separate alleged use of force separately, and it's two different sets of officers.

[00:14:11] Speaker 00:
The officers, Kozad and Lopez, weren't involved in all in the picking him up or putting him in the vehicle.

[00:14:16] Speaker 01:
All they did was drive.

[00:14:17] Speaker 01:
But they were aware of his condition, and I think plaintiffs made the allegations that he was in obvious distress before he was placed in the vehicle.

[00:14:26] Speaker 01:
And so as I understand plaintiff's allegations, it's the two officers that transported him knew his condition,

[00:14:33] Speaker 01:
He was placed there.

[00:14:34] Speaker 01:
They didn't monitor or check in on him.

[00:14:36] Speaker 01:
And then when they took him over to the Walgreens, by that point, he was already going into a medical emergency.

[00:14:43] Speaker 00:
They were moving him there for the express purpose of getting him medical attention and the drive was less than a minute.

[00:14:48] Speaker 00:
So they didn't, all they're trying to do is get him out of that hot pavement into the shade.

[00:14:52] Speaker 00:
They were concerned about him.

[00:14:54] Speaker 00:
They had already called fire for the express.

[00:14:56] Speaker 01:
I don't think the issue is about trying to get him out of the hot pavement into a shady area.

[00:15:00] Speaker 01:
It was the manner in which they allowed him to be transported that way.

[00:15:07] Speaker 00:
They did what the best that they understood that they could do at the time and no case law clearly establishes that that would be constitutional.

[00:15:13] Speaker 02:
Well, Counselor, the purpose of clearly established law is to put officers on notice of what violates constitutional rights.

[00:15:21] Speaker 02:
If they were already on notice that there was a heightened danger of harm, then the purpose of having clearly established law is served.

[00:15:33] Speaker 00:
But the United States Supreme Court has repeatedly

[00:15:36] Speaker 00:
stated that the law cannot be at a high generality.

[00:15:39] Speaker 00:
It has to be clearly established.

[00:15:41] Speaker 00:
There needs to be a case that's on all fours.

[00:15:43] Speaker 02:
Unless it's an obvious, if it's an obvious case of a constitutional violation, there does not have to be a specific case that's cited.

[00:15:52] Speaker 02:
Would you agree?

[00:15:53] Speaker 00:
I agree, Your Honor, but the United States Supreme Court has only found the obvious case exception in Eighth Amendment cases and truly

[00:15:59] Speaker 00:
sort of heinous prison context and has not found one.

[00:16:02] Speaker 00:
The Ninth Circuit has found obvious cases.

[00:16:05] Speaker 01:
Yeah, what about, I mean, even for non-obvious, what about the Drummond case?

[00:16:08] Speaker 01:
I mean, that seems to be the one that's been cited by the district court, and that involved body weight on a low-risk subject and the use of hopper restraints when it was unnecessary to do so.

[00:16:20] Speaker 01:
Why isn't that sufficient to have put the officers on notice?

[00:16:23] Speaker 00:
Because in that case, there actually was body weight on it.

[00:16:25] Speaker 00:
The officers were applying force.

[00:16:27] Speaker 00:
They were applying their body weight to that person in this limited context of what we're looking at on the appeal.

[00:16:32] Speaker 00:
There's no body weight being pushed.

[00:16:34] Speaker 00:
None of the officers are holding him down.

[00:16:36] Speaker 00:
None of the officers are shoving him.

[00:16:37] Speaker 00:
They're not putting shoulders in him.

[00:16:38] Speaker 01:
But the purpose of the rip restraint is to lift up a person's legs so that their own body weight is being pressed down on them.

[00:16:45] Speaker 01:
Why isn't that analogous?

[00:16:49] Speaker 00:
involves the actual placement of an officer's body weight on top of everything else that's going on.

[00:16:54] Speaker 00:
So it is another level of application of force that's just not present.

[00:16:59] Speaker 01:
So I guess in your view, unless there's a rip restraint case out there, there's no clearly established law.

[00:17:05] Speaker 01:
It has to be that specific in your mind?

[00:17:07] Speaker 00:
a rip restraint case involving putting someone in a vehicle and transporting them because again the actual application of the rip restraint was we were granted summary judgment on that particular piece of it.

[00:17:34] Speaker 05:
Good morning and may it please the court.

[00:17:36] Speaker 05:
Jesse Showalter of Robbins Curtain Malay and Showalter on behalf of Appellee Laura Gonzalez.

[00:17:44] Speaker 05:
This case is not about transport.

[00:17:47] Speaker 05:
I think the transport is a red herring.

[00:17:50] Speaker 05:
What the totality of the circumstances show is that in this narrow appeal, all of the officers who were appealing witnessed a constitutional violation and failed to intervene in that.

[00:18:04] Speaker 05:
That is part of the totality of the circumstances facing these officers at the points over which they are appealing.

[00:18:13] Speaker 05:
There's simply no legal principle that allows for them to evade liability for that, particularly when we have clearly established law in the form of Drummond and Blankenhorn.

[00:18:28] Speaker 02:
Counsel, what's your response to opposing counsel's

[00:18:31] Speaker 02:
retort that those cases are not specific enough to govern this case?

[00:18:38] Speaker 05:
Well, I mean, I think a fair reading of Drummond and Blankenhorn, and Blankenhorn does involve a hobble rip restraint, is that they put reasonable officers on notice.

[00:18:51] Speaker 05:
This idea that there has to be this extreme specificity for qualified immunity is really just a parody of what the Supreme Court has repeatedly said.

[00:19:01] Speaker 05:
What the Supreme Court has said in Taylor v. Riojas very recently, Hope v. Pelzer, and what the Ninth Circuit has repeatedly said is officers can be on notice that their conduct violates the Constitution even in novel factual circumstances.

[00:19:19] Speaker 05:
And the circumstances of this case are really not particularly novel.

[00:19:23] Speaker 05:
It's quite in line with Drummond, and it is also in line with Blankenhorn, and officers

[00:19:30] Speaker 05:
in this case, specifically, can't claim that they didn't know because they testified that, in fact, they'd been trained that doing these very things could cause death.

[00:19:41] Speaker 05:
I want to go to, I think it was Judge Boumete's question from my colleague about distinguishing between the officers who had lifted Ramon and put him in the back of the Tahoe and the officers who actually drove the Tahoe.

[00:20:00] Speaker 05:
Factually, there is no real distinction in the knowledge that they had and the obligation they had under the United States Constitution for their prisoner.

[00:20:10] Speaker 05:
What Drummond says is that officers have an obligation, and I'm going to quote from the district court's order at page 24 of that order, in a situation in which an RSD surrenders and is rendered helpless, any reasonable officer

[00:20:27] Speaker 05:
would know that a continued use of force or a refusal without cause to alleviate its harmful effects constitutes excessive force.

[00:20:36] Speaker 05:
That's from Drummond.

[00:20:37] Speaker 04:
Yeah, but that's a different situation than other officers putting him in that dangerous situation and then two other officers driving for a 90-second drive to the parking lot to bring him to safety in their view.

[00:20:51] Speaker 05:
And I'm not sure it is, Your Honor.

[00:20:54] Speaker 05:
And the reason why is that if I'm a police officer and I have a prisoner and he's hogtied and I say to my fellow officer, I've got to go do paperwork.

[00:21:07] Speaker 05:
You watch him.

[00:21:08] Speaker 05:
And that fellow officer has all the same knowledge that I have about what's happened up to that point.

[00:21:15] Speaker 05:
That fellow officer can't evade liability by saying, well, I was just the driver.

[00:21:21] Speaker 04:
Well, I mean, it's different if you said, watch him for 90 seconds while I go to the bathroom.

[00:21:27] Speaker 04:
Are you saying that that officer had an obligation at that point to untie the person?

[00:21:32] Speaker 05:
If that officer has all the same knowledge as the handing off officer that we're thinking about, they know that this guy can die if left.

[00:21:44] Speaker 05:
I mean, I have a hard time seeing how you can distinguish those two things.

[00:21:49] Speaker 04:
I think you might be right on prong one.

[00:21:51] Speaker 04:
I just don't see how you get to prong two.

[00:21:53] Speaker 04:
I don't see what's clearly established law saying that other officers are then responsible.

[00:21:59] Speaker 05:
And I don't think we need clearly established law for that.

[00:22:02] Speaker 05:
I think that's part of officer's training, is you are responsible.

[00:22:06] Speaker 04:
You always need clearly established law.

[00:22:08] Speaker 05:
I don't think we do for that component because I think that is a premise of

[00:22:13] Speaker 05:
All of this is that when you take someone into custody, and that's why I'm fighting back on this, is whose custody is Ramon in when he's in that car?

[00:22:26] Speaker 05:
He's in the custody of Cozad and Officer Lopez.

[00:22:29] Speaker 05:
And they can't say, oh, we didn't know because they were right there and they knew.

[00:22:35] Speaker 04:
I think that idea- I don't understand why you're saying you don't need clearly established law for that.

[00:22:40] Speaker 04:
They're entitled to qualified immunity if there's no clearly established law saying that the way they did it was wrong.

[00:22:44] Speaker 05:
Because that's equally obvious.

[00:22:46] Speaker 04:
That's- So you're just relying on the obviousness problem.

[00:22:49] Speaker 05:
That's the first day of training for every officer who enters the county.

[00:22:52] Speaker 04:
But you have no other case besides the obviousness case.

[00:23:00] Speaker 05:
I don't have one for that specific principle.

[00:23:06] Speaker 05:
But I don't think it matters, because it really is obvious.

[00:23:10] Speaker 05:
I'm not so sure.

[00:23:12] Speaker 04:
There's obvious cases that this one's like, well, transport him 90 seconds so that we could help him and get him out of the hot sun, get him medical attention.

[00:23:21] Speaker 04:
All I'm asking you to do is drive him to the parking lot.

[00:23:23] Speaker 05:
But here's the problem with the way you've just phrased that, Your Honor, is you've just accepted their jury arguments as being true.

[00:23:30] Speaker 05:
Because you said we were trying to get them out of the hot sun.

[00:23:33] Speaker 05:
Is that disputed?

[00:23:33] Speaker 05:
Absolutely.

[00:23:35] Speaker 05:
What do you think they were trying to do?

[00:23:36] Speaker 05:
A reasonable jury could say, if these guys were that concerned about protecting Ramon, they would not have violated their policies and tossed him into the back seat face down.

[00:23:48] Speaker 05:
And so saying- It's all consistent, though.

[00:23:50] Speaker 05:
I mean, what do you think they were trying to do when they moved him to the parking lot?

[00:23:53] Speaker 05:
I think they wanted to get out of the street.

[00:23:56] Speaker 05:
I don't think they were thinking- Yes, okay, that's a legitimate reason.

[00:23:58] Speaker 05:
I don't think they were thinking about Ramon at all.

[00:24:00] Speaker 05:
Okay, fine.

[00:24:01] Speaker 04:
Even if it's that reason that they wanted to get him out of the street.

[00:24:04] Speaker 04:
So traffic safety, right?

[00:24:05] Speaker 04:
You have to acknowledge that it's undisputed they wanted him out of the street because there was a safety concern for the traffic.

[00:24:11] Speaker 04:
But that's a jury argument that they can make.

[00:24:13] Speaker 04:
But it's undisputed.

[00:24:14] Speaker 04:
I thought it's undisputed.

[00:24:16] Speaker 04:
I thought you disagreed with that.

[00:24:18] Speaker 05:
I agree that that's what they say.

[00:24:20] Speaker 04:
So it's undisputed that they... So what's the disputed fact here?

[00:24:24] Speaker 04:
Why they transported him to the park?

[00:24:28] Speaker 04:
Enlighten favoritism to you.

[00:24:29] Speaker 05:
The disputed fact is whether they had other ways they could have done it.

[00:24:34] Speaker 04:
No, no.

[00:24:35] Speaker 04:
Why did they transport him to the parking lot?

[00:24:38] Speaker 05:
I understand that the officers say

[00:24:41] Speaker 05:
that they transported him to the parking lot because they were trying to get him to medical care.

[00:24:47] Speaker 04:
But you're saying they did it just for traffic safety.

[00:24:49] Speaker 05:
I'm saying I think they wanted to get out of the street and out of the heat and they didn't care about Ramon at all.

[00:24:57] Speaker 04:
Why is it obvious that an officer that's asked to drive someone 90 seconds away to a parking lot so that the streets are clear and safe, how is that obvious that they've committed a constitutional violation?

[00:25:11] Speaker 05:
Because they have a constitutional obligation that's recognized in every use of force case with respect to the people in their custody.

[00:25:19] Speaker 05:
That is an underlying premise of every single use of force case involving an arrest.

[00:25:24] Speaker 04:
I mean, my problem is that all the cases I've read that are the officers that are actually doing the tackling or putting the pressure on, they're the ones being denied qualified immunity.

[00:25:35] Speaker 04:
I've never seen a case where follow-up officers who do a small task of transporting for 90 seconds are then held liable.

[00:25:43] Speaker 05:
But it's simply a continuation of the failure to intervene.

[00:25:47] Speaker 01:
I mean, let's just say this.

[00:25:50] Speaker 01:
Even if we were just looking at the transportation part, the department manuals and the plaintiff's experts said that transporting an individual in this manner creates a heightened risk of serious harm and death.

[00:26:02] Speaker 01:
And they're the only ones responsible for the transportation piece of it.

[00:26:07] Speaker 01:
So I'm not, you know, I don't see why Truman

[00:26:10] Speaker 01:
in Blankenhorn would also not be relevant precedent for this particular point about continuing use of force when it's no longer necessary.

[00:26:19] Speaker 01:
I don't know that we need to get into an obviousness analysis of this.

[00:26:23] Speaker 01:
Why aren't those cases sufficient to inform an officer of the heightened risk of transporting someone that way?

[00:26:33] Speaker 05:
I think they are, Your Honor.

[00:26:35] Speaker 05:
And I think what is significant in line with Drummond as well as Hope V. Pelzer is these officers were trained that they could not transport a person in the fashion they did.

[00:26:46] Speaker 05:
They were trained they couldn't hogtie.

[00:26:49] Speaker 05:
And something I wanted to go back to, they were trained that they could not hogtie and they were trained they could not transport somebody face down.

[00:26:56] Speaker 05:
They were also trained, they had to monitor anybody in rip restraints.

[00:27:00] Speaker 01:
And one of the questions the court... And they were the only officers responsible for transporting.

[00:27:05] Speaker 01:
Correct.

[00:27:06] Speaker 01:
So if we were to look at the transportation issue, those are the two officers that are responsible for that issue.

[00:27:11] Speaker 05:
That's correct.

[00:27:12] Speaker 05:
Okay.

[00:27:12] Speaker 05:
And that is Cozada and Lopez.

[00:27:14] Speaker 05:
And I wanted to... One of the questions that came up with my colleague was the rip restraint.

[00:27:23] Speaker 05:
A rip restraint does not equal hog tying.

[00:27:27] Speaker 05:
A ripper strain, it looks like a dog leash.

[00:27:33] Speaker 05:
On one end there's a clip that's identical to most dog leash clips.

[00:27:37] Speaker 05:
And what is supposed to happen is that the other end, which has a loop, is supposed to be fastened around the subject's ankles.

[00:27:44] Speaker 05:
And then the full length of the ripper strain is supposed to be clipped to the handcuff chain.

[00:27:50] Speaker 05:
That didn't happen here.

[00:27:52] Speaker 05:
Phoenix policy

[00:27:54] Speaker 05:
Phoenix training specifically says, do not shorten the length of the ripper strain because that results in hog tying.

[00:28:00] Speaker 05:
That's what happened here.

[00:28:02] Speaker 05:
What's supposed to happen at the, in other words, they pulled it through and then attached it to the ankles.

[00:28:08] Speaker 05:
And that's why this was an illegal hog tie under Phoenix policy.

[00:28:13] Speaker 05:
What's supposed to happen at the point of transport and what the officers testified to is that that clip that is attached to the handcuffs

[00:28:23] Speaker 05:
is supposed to be unfastened and fastened to another point in the vehicle.

[00:28:29] Speaker 05:
Usually I think they use the steel rod at the base of the front seat seatbelt.

[00:28:37] Speaker 05:
Officers have testified about other ways of doing it.

[00:28:40] Speaker 04:
Can I ask a question about that, what we were calling placement?

[00:28:43] Speaker 04:
For me, I see actually two different actions in the placement.

[00:28:47] Speaker 04:
One is lifting him up hogtied, as you said, and then lying him prone in a Tahoe.

[00:28:54] Speaker 04:
I see those as two separate actions that, you know, laying prone, I don't see as being reasonable, but lifting him up,

[00:29:03] Speaker 04:
where he wasn't standing, that seems different.

[00:29:06] Speaker 04:
And so that we could analyze those two steps differently.

[00:29:09] Speaker 04:
Is there anything wrong with how I'm looking at it?

[00:29:11] Speaker 05:
I think the problem with that is that he was still hogtied in violation of their own policies.

[00:29:16] Speaker 05:
And I don't think that we can go into a jury and say that the period during which he was being lifted is what caused his death.

[00:29:24] Speaker 04:
Right.

[00:29:24] Speaker 04:
I know.

[00:29:24] Speaker 04:
That's why I'm saying that that part

[00:29:26] Speaker 04:
I think the cause of death was being prone in the Tahoe.

[00:29:31] Speaker 04:
The lifting up part where he wouldn't walk.

[00:29:34] Speaker 04:
I mean, it's pretty clear he couldn't walk.

[00:29:35] Speaker 04:
And so how else were they supposed to transport him?

[00:29:38] Speaker 05:
Well, he couldn't walk because they'd hogtied him.

[00:29:41] Speaker 05:
Right.

[00:29:42] Speaker 05:
So if they... Well, that... The testimony from the officers is if the rip restraint had been properly applied and had not been doubled over so that it was so short that a subject couldn't walk.

[00:29:53] Speaker 03:
He was not going to walk.

[00:29:55] Speaker 05:
But here's the problem with that is that he was in such bad shape, he wasn't going to walk because of the constitutional violation they'd already all witnessed.

[00:30:06] Speaker 04:
Well, the district court said that that was all, that did not find that a constitutional violation.

[00:30:10] Speaker 05:
But I guess technically, Officer Mosley's kneeling on his back after the completion of the restraint.

[00:30:18] Speaker 05:
Fair enough.

[00:30:18] Speaker 05:
Okay.

[00:30:19] Speaker 04:
One minute.

[00:30:19] Speaker 04:
Can I ask this real quick?

[00:30:21] Speaker 04:
If someone in a rip restraint refuses to walk, what are the officers supposed to do?

[00:30:30] Speaker 05:
I don't,

[00:30:31] Speaker 05:
I don't know for sure what the answer is, because I don't have testimony on that.

[00:30:35] Speaker 05:
I know what happened here, but I think the problem is that he was hogtied.

[00:30:41] Speaker 05:
He wasn't rip restrained per policy.

[00:30:45] Speaker 05:
So they're already crossed the Rubicon into a constitutional violation at that point.

[00:30:49] Speaker 05:
What they should have done is unfasten the rip restraint.

[00:30:53] Speaker 05:
correctly attached to the scene if he could walk, taken him to the vehicle, and then properly positioned him and belted him in.

[00:31:02] Speaker 01:
I wanted to follow up.

[00:31:04] Speaker 01:
Opposing counsel mentioned that it was undisputed that he was trying to resist after he was rip restrained and that Officer Mosley's, I guess, body cam fell off because of a kick.

[00:31:18] Speaker 01:
Do you see this as an undisputed issue, or what do plaintiffs allege?

[00:31:23] Speaker 05:
That is a disputed issue.

[00:31:26] Speaker 05:
The district court found it's a disputed issue.

[00:31:30] Speaker 05:
It's not clear how Ramon could have possibly kicked anybody volitionally while he's being carried in a hog-tie fashion.

[00:31:38] Speaker 05:
We do not know for certain why Officer Mosley's body-worn camera fell off.

[00:31:43] Speaker 05:
Ramon was being handled by multiple other officers.

[00:31:46] Speaker 05:
It's possible it got jostled.

[00:31:48] Speaker 05:
It's possible Officer Mosley got jostled.

[00:31:51] Speaker 05:
But it's certainly, there's a dispute, because it's not shown on the video that, or any of the videos, that Ramon actually kicked Officer Mosley.

[00:32:00] Speaker 05:
And I would take a step back and go larger on that, because obviously I can't, I'm not appealing Judge Liberty's rulings on earlier things that happened.

[00:32:18] Speaker 05:
But when Ramon is being held face down on 140-degree asphalt, I think a reasonable jury can say that none of his movements could possibly be volitional, intentional attempts to resist, that what's actually happening there is he's being tortured, he's dying,

[00:32:37] Speaker 05:
and his body is moving spasmodically.

[00:32:40] Speaker 05:
And I think a reasonable jury could conclude that that is exactly what's happening, even if there were some indication that it was a movement by Ramon that knocked off Officer Mosley's body-worn camera.

[00:32:54] Speaker 05:
If there are no further questions, I'd like to thank your honors.

[00:33:00] Speaker 05:
for my time and request that the district court's order be affirmed.

[00:33:05] Speaker 02:
Thank you.

[00:33:05] Speaker 02:
Thank you, counsel.

[00:33:06] Speaker 02:
Counsel, you exceeded your time.

[00:33:07] Speaker 02:
We'll give you two minutes for rebuttal.

[00:33:15] Speaker 00:
Thank you.

[00:33:16] Speaker 00:
So a lot of what we're hearing in this argument goes back to training over and over again, but as recently as last year, this court

[00:33:23] Speaker 00:
recognized in Perez versus City of Fresno that training materials can influence the qualified immunity analysis, but they cannot be determinative.

[00:33:31] Speaker 00:
And I think we keep going back to what were the officers trained on because there is no case law that covers the specific issue.

[00:33:38] Speaker 00:
So we're falling back on training.

[00:33:40] Speaker 04:
But counsel, it's not really about to me.

[00:33:41] Speaker 04:
It's not about training.

[00:33:42] Speaker 04:
It's that the all officers said that they knew that if you leave someone in a prone position that they could asphyxiate, but that's not about training.

[00:33:50] Speaker 04:
It's about reasonableness.

[00:33:51] Speaker 04:
If they all know,

[00:33:52] Speaker 04:
that a reasonable officer knows that someone is going to be, can asphyxiate, that's what it's about.

[00:34:00] Speaker 04:
It's not about their specific training.

[00:34:02] Speaker 00:
They knew there was a risk of it from their training, but that's different than, for example, knowing that if you shoot someone, they will be hurt when they're shot.

[00:34:10] Speaker 00:
Why is that different?

[00:34:11] Speaker 00:
Because the training said that there was a heightened risk, but there's not

[00:34:15] Speaker 00:
There's not the kind of clearly established case law that would back that up for the officers to understand it would be a constitutional violation, because all they know is there is a heightened risk.

[00:34:24] Speaker 00:
And they know there's a heightened risk.

[00:34:25] Speaker 04:
But they all knew it, right?

[00:34:25] Speaker 04:
They all knew that if you leave them someone in that position, that they could die.

[00:34:29] Speaker 00:
They did.

[00:34:30] Speaker 00:
But the timing of that, how long it might take, what other circumstances are involved, if there's pressure being applied by an officer.

[00:34:37] Speaker 04:
They all knew this could happen instantly, right?

[00:34:39] Speaker 00:
I don't think the record reflects that they knew that it could happen instantly.

[00:34:43] Speaker 00:
I think the record reflects that they understood that there could be a heightened risk.

[00:34:46] Speaker 04:
And we know from case law that that risk is… I guess the thing is, I agree with you, the training is irrelevant to me, but the fact is that they all knew, and a reasonable officer would know, that putting them in that position could kill them.

[00:34:58] Speaker 00:
But that isn't… What's wrong with that analysis?

[00:35:01] Speaker 00:
That isn't the qualified immunity analysis.

[00:35:03] Speaker 00:
The qualified immunity analysis is whether the case law clearly establishes or a consensus kind of shows that obvious case exception, or if it truly is an obvious case,

[00:35:13] Speaker 00:
The obvious case exception does not apply here, and then we're falling back on training.

[00:35:18] Speaker 00:
Thank you.

[00:35:18] Speaker 00:
Thank you, counsel.

[00:35:20] Speaker 00:
Thank you to both counsels.

[00:35:22] Speaker 02:
The case just argued is submitted for decision by the court.

[00:35:26] Speaker 02:
The next case on calendar for argument is right cell versus concentric healthcare solution.