[00:00:02] Speaker 01:
So now we have our marathon case.

[00:00:06] Speaker 01:
I'm going to be pretty strict about times for everybody and whether you reserve time.

[00:00:18] Speaker 01:
If you want to, you're going to have to be very careful about that.

[00:00:21] Speaker 01:
Generally, it doesn't work very well, reserving time.

[00:00:25] Speaker 01:
So let's start with

[00:00:27] Speaker 01:
We're going to hear three consolidated cases for argument anyway.

[00:00:33] Speaker 01:
24-7035, Kruger versus Phillips et al.

[00:00:35] Speaker 01:
24-7037, Kruger versus Or et al.

[00:00:40] Speaker 01:
24-7066, Kruger versus Crockett et al.

[00:00:47] Speaker 01:
She should have said Kruger et al.

[00:00:49] Speaker 01:
So we'll start with 24-7035, Mr. Kim.

[00:00:56] Speaker 01:
And you have 15 minutes.

[00:01:05] Speaker 06:
Thank you, Your Honors.

[00:01:06] Speaker 06:
May it please the Court?

[00:01:07] Speaker 06:
My name is John Kim.

[00:01:08] Speaker 06:
I represent Defendants Appellants Nicholas Orr, Caleb Phillips, and Matthew Locke.

[00:01:14] Speaker 06:
As Your Honors are well aware, this appeal concerns a late-night traffic stop at Mr. Jeffrey Krueger on July 1, 2019.

[00:01:21] Speaker 06:
After Wagner County Sheriff's Deputies Orrin Phillips observed Mr. Krueger's strange behavior and reckless driving, Mr. Krueger was pulled over.

[00:01:27] Speaker 06:
Mr. Krueger abruptly pulled over into the center turn lane of a busy highway at night and opened his door.

[00:01:34] Speaker 06:
The traffic stop escalated after Mr. Krueger refused to comply with a series of simple progressive commands issued by Deputies Orrin Phillips, who were at full uniform.

[00:01:44] Speaker 06:
While ignoring commands, Mr. Krueger dug around in his vehicle if he was looking for something.

[00:01:49] Speaker 06:
This was unusual because at that point, he was never asked to do anything but show his hands by the deputies.

[00:01:56] Speaker 06:
Due to the rising uncertainty and safety concerns created by Mr. Kruger's continued noncompliance, Deputy Phillips attempted to physically restrain Mr. Kruger.

[00:02:04] Speaker 06:
In response, Mr. Kruger grabbed and assaulted Deputy Phillips and even tried to grab at his gun.

[00:02:10] Speaker 06:
At that point, what should have been a routine traffic stop turned into violent ground combat.

[00:02:14] Speaker 06:
Mr. Kruger violently fought off both deputies as they tried to arrest him.

[00:02:19] Speaker 06:
He fought back against arrest so vigorously that the deputies had to call for help.

[00:02:23] Speaker 06:
And this was all plainly captured by Phillips' body camera.

[00:02:27] Speaker 06:
It wasn't until EMTs arrived on scene to help that the deputies were even able to handcuff Mr. Krueger.

[00:02:32] Speaker 06:
In addition to EMTs, additional officers of the Wagner Police Department and the Sheriff's Office responded with calls for help.

[00:02:39] Speaker 06:
Despite being handcuffed and given repeated orders to stop resisting, Mr. Krueger did everything but.

[00:02:44] Speaker 06:
Mr. Krueger's continued resistance, which included kicking the officers, necessitated the use of leg shackles.

[00:02:50] Speaker 01:
Just moments after the leg shackles were applied, Mr. Krueger... Let me just... What's the evidence regarding how Mr. Krueger's head was bloodied?

[00:03:01] Speaker 01:
I thought that is... We don't have any video of that, do we?

[00:03:05] Speaker 01:
I believe that's based on possibly some photographs of the scene.

[00:03:11] Speaker 01:
But we don't know how that happened.

[00:03:13] Speaker 01:
And the district court said,

[00:03:15] Speaker 01:
Maybe incorrectly, but this is the sort of thing we have to defer to the district court on.

[00:03:20] Speaker 01:
The court said a jury might find, could find that the officers bashed his head against the pavement, which might have been necessary, but might well have been excessive force.

[00:03:34] Speaker 01:
So that's the factual, you've recited a lot of relevant factual information.

[00:03:41] Speaker 01:
But there's that gap, and I thought the district court was relying on that gap in denying summary judgment.

[00:03:48] Speaker 06:
Your Honor, even if there was a gap, I believe that, based on the totality of the circumstances, that presumably happened during the course of the attempted arrest.

[00:03:58] Speaker 06:
And the case law in our circuit has very clearly established that the Fourth Amendment jurisprudence

[00:04:05] Speaker 06:
allows the right to use some force in order to effectuate an arrest.

[00:04:10] Speaker 04:
Well, some force isn't any force and some force isn't deadly force, right?

[00:04:18] Speaker 04:
It has to be proportional.

[00:04:21] Speaker 06:
Correct.

[00:04:22] Speaker 04:
And so can we agree that a prone restraint is deadly force?

[00:04:29] Speaker 06:
Judge McHugh, I think based on the law that's clearly established, there's a little bit more to it than just being prone and restrained.

[00:04:36] Speaker 06:
I believe the cases such as the State of Booker, Weigel, Cruz, those establish that it's not just being prone and restrained, but it's the application of substantial and significant weight on the prone.

[00:04:49] Speaker 04:
Well, in this case, given the autopsy results, a reasonable jury could find there was substantial weight.

[00:04:57] Speaker 04:
placed, right?

[00:04:58] Speaker 04:
Don't we have broken ribs?

[00:05:00] Speaker 06:
Your Honor, I believe the autopsy report doesn't explain when or at what point those ribs were broken and how they were broken.

[00:05:10] Speaker 03:
I thought there was some evidence that some of them were broken when they threw him down to the ground, busted his head open, and some were broken while he was prone and they were sitting on him.

[00:05:23] Speaker 06:
Your Honor, I think the evidence only shows that at some point during

[00:05:27] Speaker 06:
beginning and the end, or Mr. Krueger's transport of waste, somewhere at that point that occurred, but it's not necessarily pinpointed as to at what point that happened, whether it was at the very beginning of the arrest or at the very end or somewhere in the middle, and it's unclear.

[00:05:43] Speaker 04:
Well, is that a jury question, then?

[00:05:45] Speaker 06:
Your Honor, if there's no evidence for a jury to consider, I'm not really sure how they can get to a conclusion.

[00:05:50] Speaker 04:
Well, there is evidence.

[00:05:51] Speaker 04:
You've got autopsy report, you've got some gruesome photographs, you've got

[00:05:56] Speaker 04:
a clump of bloody hair, and you have a person who died after being subjected to a prolonged, prone restraint.

[00:06:06] Speaker 06:
Judge McHugh, if you'll let me, I'd like to kind of split that up, at least as to the initial phase of the arrest involving Deputies Orrin Phillips.

[00:06:15] Speaker 06:
They only used the force that was proportionately necessary to restrain him.

[00:06:19] Speaker 06:
At that point when he was handcuffed, they immediately got off of him.

[00:06:23] Speaker 03:
Was it necessary to restrain him or to pull him out of the car to throw his head against the ground and have a large open leading gash?

[00:06:32] Speaker 03:
Was that necessary?

[00:06:34] Speaker 06:
Judge Moritz, it was necessary because when Phillips decided to restrain Mr. Kruger, he reached and grabbed him and even tried to attempt to grab his service weapon.

[00:06:43] Speaker 03:
Isn't that, isn't that contraverted?

[00:06:47] Speaker 03:
I mean, I understand that the victim's not alive to tell us, but haven't they controverted that by the fact that these two defendants, Phillips and Orr, have some credibility issues, particularly with respect to the fact that they essentially lied about, you know, the fact that they said they left after they got off of the

[00:07:13] Speaker 03:
off of the suspect, they left, they sat and didn't hear anything else until they heard he wasn't breathing, when in fact the video shows, one of the videos, Plot's video shows that they absolutely didn't leave, they were there.

[00:07:25] Speaker 03:
That's one credibility issue.

[00:07:27] Speaker 03:
Isn't there a credibility issue as to whether they were telling the truth about what was happening in the vehicle and their basis for pulling them out of the car?

[00:07:37] Speaker 06:
Judge Moritz, I believe all the circumstantial evidence pointed by the plaintiffs appellees regarding the credibility issues don't necessarily raise any questions about the veracity of what Phillips and Orr have testified to.

[00:07:49] Speaker 03:
How else would you raise a credibility issue when the victim is deceased and can't speak for himself?

[00:07:56] Speaker 03:
By showing that they lied about what happened after that and said they weren't there, when in fact they were and didn't indeed.

[00:08:06] Speaker 03:
Judge Ward said... What else would you show credibility?

[00:08:08] Speaker 06:
Well, I believe you could point to some inconsistent testimony.

[00:08:12] Speaker 03:
That's inconsistent, isn't it?

[00:08:15] Speaker 03:
Their testimony was inconsistent with what the video showed.

[00:08:18] Speaker 03:
Isn't that a credibility issue?

[00:08:20] Speaker 03:
Pretty strong one.

[00:08:21] Speaker 06:
Well, Judge Ward, I think it depends on how far you take, whether literally you take their statement that they left.

[00:08:28] Speaker 06:
They were still generally on the scene, but they weren't anywhere near Mr. Krueger.

[00:08:33] Speaker 03:
They could see what was going on.

[00:08:36] Speaker 03:
Your Honor, I believe the body... They were in the video right there.

[00:08:39] Speaker 03:
We can see them.

[00:08:40] Speaker 03:
We can see them.

[00:08:41] Speaker 06:
Behind the circle of other officers while they were all at ground.

[00:08:45] Speaker 03:
That's a fact question at a minimum, isn't it?

[00:08:47] Speaker 03:
Whether that was true that they just were gone and didn't know what was going on.

[00:08:51] Speaker 03:
Isn't that at least a fact question based on what the video shows?

[00:09:00] Speaker 06:
Your Honor, I think I would respectfully disagree.

[00:09:02] Speaker 06:
I don't think it's materially disputed that they walked away.

[00:09:05] Speaker 06:
I think even the body camera footage early on captures them, captures Owen Phillips having walked away, set their vest down because they were so exhausted from the strength of a struggle.

[00:09:16] Speaker 06:
They were by a police vehicle about 20, 30 feet from where Mr. Krueger was pregnant and was pregnant.

[00:09:22] Speaker 03:
Well, there's a number of items that the plaintiffs rely on to show a credibility issue.

[00:09:31] Speaker 03:
with respect to those two officers.

[00:09:34] Speaker 03:
And if there is a credibility issue, then can we assume as a fact that their version of the facts, when they pulled him out, that he reached for the gun or that he was fighting them?

[00:09:49] Speaker 03:
We don't have any video, because that's another point.

[00:09:52] Speaker 03:
One of their Phillips body cam doesn't start with the usual 20 to 30 seconds for some reason.

[00:09:59] Speaker 06:
That's correct.

[00:10:00] Speaker 03:
There's more.

[00:10:01] Speaker 03:
The two of them didn't file a police report for some reason.

[00:10:06] Speaker 03:
Those are things that they point to as far as the lack of credibility.

[00:10:10] Speaker 06:
Well, as far as what was captured on a body camera footage, I think it can't be disputed that when the footage does begin, Mr. Kerber is violently and aggressively fighting off two fully uniformed deputies.

[00:10:20] Speaker 04:
Well, he's also being repeatedly tased.

[00:10:23] Speaker 04:
How many people can stay still when they're... And he's being tased at a higher voltage.

[00:10:29] Speaker 04:
than is the norm, right?

[00:10:32] Speaker 04:
And, you know, there's a dispute about how many times he's tased, but when you watch the video, it sure looks like they're tasing him quite a lot.

[00:10:40] Speaker 06:
Judge McHugh, the video does capture the audio of the taser arcing, but I believe the evidence in the summary judgment record by plaintiff's own expert shows that there's no data that conclusively shows that those taser arcs actually made contact with Mr. Krueger.

[00:10:56] Speaker 06:
There's a difference between just the arcing and then making contact.

[00:10:59] Speaker 03:
There's no way... It's a fact question.

[00:11:02] Speaker 03:
It's a fact question.

[00:11:04] Speaker 03:
It's a fact question.

[00:11:06] Speaker 06:
If the plaintiff's own expert can't testify as to whether Taser ever made contact, I'm not really sure what a jury could consider.

[00:11:12] Speaker 04:
Well, the experts, I thought, said seven times.

[00:11:16] Speaker 04:
It was tased seven times during that short period of time.

[00:11:20] Speaker 06:
If I recall, that was probably an extrapolation from what was based on the computer data, the taser.

[00:11:26] Speaker 06:
But again, I think conclusively, that expert ultimately couldn't testify one way or another with any positivity whether the contact was actually made during the student.

[00:11:35] Speaker 04:
Well, I saw contact being made.

[00:11:38] Speaker 04:
Can the jury do that too?

[00:11:40] Speaker 04:
Sure, Judge McHugh, but then I think I'd still go back to the point that on the body camera footage it's just plainly obvious that Mr. Krueger was given simple commands to give up his hands and he wasn't being able... Well, at one point he's being given a command to turn over and you can see in the video somebody's holding his head down and you can hear him saying, what am I supposed to do?

[00:12:02] Speaker 04:
How can I turn over?

[00:12:03] Speaker 04:
I think it's your brief, somebody's brief argues that you can't hear him.

[00:12:08] Speaker 04:
calling for help and saying things, I can hear him.

[00:12:12] Speaker 04:
I don't know why you can't hear him.

[00:12:16] Speaker 06:
Judge McKeer, I can't speak to why Mr. Kruger said that, but it doesn't seem like the command of giving up your hands is one that couldn't be complied with easily.

[00:12:26] Speaker 06:
I think it's undisputed in the video that he had him tucked underneath him.

[00:12:31] Speaker 03:
Yeah, that's a good question.

[00:12:32] Speaker 03:
I'm sorry, go ahead.

[00:12:34] Speaker 01:
I was confused about something a few minutes ago, but with respect to officers Orr and Phillips, is there any allegation that they put pressure on Mr. Krueger while he was lying down, face down, that they put pressure on his back or shoulders?

[00:12:51] Speaker 06:
I don't think it's directly addressed on point because at that time they were still struggling to restrain him.

[00:12:58] Speaker 06:
Naturally, while they were engaged in ground combat while Mr. Krueger was fighting back,

[00:13:03] Speaker 06:
presumably had some undetermined amount of weight on him, but that was still during the restraint period.

[00:13:09] Speaker 06:
And I think even this circuit's laws clearly established that it's really only when a suspect is actually subdued and restrained.

[00:13:17] Speaker 06:
I think in some of the other similar factual cases, it wasn't until the suspect's legs were restrained and hands were restrained and then when weight is placed on that suspect that you run into some violative conduct in the Fourth Amendment.

[00:13:32] Speaker 06:
And he was never restrained when Orr and Phillips were involved.

[00:13:36] Speaker 06:
Is that right?

[00:13:37] Speaker 06:
Correct, Judge.

[00:13:38] Speaker 06:
Judge Harts, I think even the district court even determined that when Lott and the other additional officers arrived on scene in response to the calls for help, Mr. Gruger was still kicking his legs at that point.

[00:13:49] Speaker 01:
But back to my original inquiry about the gas to his head, that's a different claim against Orr and Phillips, is it not?

[00:14:00] Speaker 01:
And there, didn't the judge rely on the fact that we don't have any video of how that happened?

[00:14:06] Speaker 01:
And the judge said essentially a reasonable fact finder could find that the officers used excessive force in causing that wound.

[00:14:16] Speaker 06:
Your Honor, still I would state that

[00:14:19] Speaker 06:
The law in our circuit says that even a considerable amount of force, even such as the one used here, may be necessary to effectuate an arrest.

[00:14:28] Speaker 06:
I think otherwise there's this invisible demarcation in time at which an officer has to let a suspect go because they might fear that they have used too much force before an arrest is even effectuated.

[00:14:39] Speaker 01:
Well, if he's struggling, they could put a gun to his head and blow his brains out, right?

[00:14:44] Speaker 01:
That would be excessive.

[00:14:46] Speaker 01:
It's not like anything goes.

[00:14:48] Speaker 01:
And that's what the judge is saying.

[00:14:49] Speaker 01:
We don't know what happened here.

[00:14:51] Speaker 01:
And if they had him down and they start bashing his head against the pavement, which they will, of course, deny, that if the jury found that, they could find that the officers violated clearly established law in doing that.

[00:15:06] Speaker 06:
Judge Harts, conversely, I think a jury would also look at the body camera footage and realize that even after that occurred, Mr. Kruger wasn't restrained.

[00:15:16] Speaker 06:
The arrest hasn't been effected yet.

[00:15:19] Speaker 04:
But so you're saying you can bash their head against the asphalt repeatedly if they're still fighting?

[00:15:25] Speaker 06:
Judge McHugh, I believe... I'm not sure what your point is.

[00:15:30] Speaker 06:
My point is that an officer can increase their use of force proportionally in response to a suspect's resistance to arrest.

[00:15:40] Speaker 04:
Well, it's really about whether the officer is in danger, right?

[00:15:48] Speaker 04:
The proportional force that is necessary at the moment, and as Judge Hart's pointed out, you can't shoot him.

[00:15:57] Speaker 04:
You know, we have case law from the Supreme Court, even when someone's ignoring all your commands and running away, you can't shoot him in the back, right?

[00:16:07] Speaker 06:
Correct, Judge McHugh.

[00:16:08] Speaker 04:
So he's certainly resisting arrest, but you can't shoot him.

[00:16:13] Speaker 01:
Yes, Jim.

[00:16:14] Speaker 01:
Time's up.

[00:16:15] Speaker 00:
Sorry.

[00:16:17] Speaker 01:
Your 15 minutes has expired.

[00:16:19] Speaker 01:
That's 23 seconds.

[00:16:20] Speaker 01:
Thank you, Your Honor.

[00:16:29] Speaker 01:
Mr. LeBlanc, is that right?

[00:16:31] Speaker 07:
Yes, sir.

[00:16:32] Speaker 01:
And you're in 7037.

[00:16:33] Speaker 01:
Yes, sir.

[00:16:34] Speaker 01:
So you're, why don't you name the, it's the officers with the sheriffs?

[00:16:40] Speaker 01:
No.

[00:16:41] Speaker 07:
No, sir.

[00:16:42] Speaker 07:
I'm Thomas LeBlanc on behalf of these Wagner City police officers, Tyler McFarland, Andrew Craig, Benjamin Blair, and Corey Nevit.

[00:16:53] Speaker 07:
And yes, Your Honor, this is appeal number 24-70-37.

[00:16:56] Speaker 07:
Thank you.

[00:17:00] Speaker 07:
Your Honor, you may please the court.

[00:17:03] Speaker 07:
In its decision below, the trial court erred in denying these four officers qualified immunity.

[00:17:10] Speaker 07:
The facts in the case law identified by the trial court do not support a Fourth Amendment violation for excessive force, nor a Fourth Amendment violation for failure to intervene.

[00:17:21] Speaker 07:
The facts in case law identified by the trial court do not support a finding that the law was clearly established such that every reasonable officer on that scene under these specific facts would know beyond debate that the actions of McFarland and Craig constituted excessive force.

[00:17:40] Speaker 01:
Well, we have pretty clear, clearly established law that if someone is restrained, then you cannot do certain things on the person's back, maybe shoulders, while they're lying there prone.

[00:17:57] Speaker 01:
Do you agree with that clearly established law, or do you want to... I would like to discuss that a little bit, Your Honor.

[00:18:05] Speaker 07:
I think in the court and in the appellees,

[00:18:08] Speaker 07:
very clearly relied heavily, almost exclusively, on this court's opinion in the Weigel case.

[00:18:16] Speaker 07:
And as we point out in our papers, Your Honor, the Weigel decision was a fractured decision and under an analysis of a very specific set of facts.

[00:18:28] Speaker 07:
And the takeaway from the Weigel case ultimately was that it is inappropriate to continue

[00:18:39] Speaker 07:
to apply force to the upper torso of a fully restrained individual.

[00:18:47] Speaker 07:
And as your honor knows, the concurrence in that case made an effort to actually clearly demarcate a difference between applying force to a continuing struggling and resisting

[00:19:02] Speaker 07:
individual versus that point at which that person is clearly under control.

[00:19:08] Speaker 04:
And in the Weigel case... But in Weigel, the majority first says that every reasonable officer would have known that the pressure placed on Mr. Weigel's upper back as he lay on his stomach created a significant risk of asphyxiation and death.

[00:19:28] Speaker 04:
Then it says additionally

[00:19:32] Speaker 04:
there was evidence that he continued to fight.

[00:19:34] Speaker 04:
I see those as two separate conclusions.

[00:19:39] Speaker 04:
And it is true.

[00:19:41] Speaker 04:
Every reasonable officer knows that a prone restraint can be lethal.

[00:19:48] Speaker 07:
With respect, Your Honor, what every reasonable officer knows is that in some circumstances, it is potential that a prolonged

[00:20:01] Speaker 07:
prone restraint with significant weight can be potentially lethal.

[00:20:06] Speaker 07:
But your honor, every day in this country, thousands of arrestees are placed in a prone position in order to be handcuffed without injury or incident.

[00:20:16] Speaker 07:
And in fact, the literature that was even cited in profit to the court in both the Cruz case and I believe in Weigel also clearly indicates that death from positional asphyxia is exceedingly rare.

[00:20:29] Speaker 07:
So to suggest that it is

[00:20:31] Speaker 07:
Per se, deadly force is not the law in the 10th Circuit.

[00:20:36] Speaker 07:
It has never been the law.

[00:20:38] Speaker 07:
And if that were the case, then every single arrest would involve the use of deadly force, virtually, not area.

[00:20:46] Speaker 07:
I overstate.

[00:20:48] Speaker 01:
I think I wrote the concurrence, which was between Judge Seymour and Judge Balbaugh.

[00:20:56] Speaker 01:
And I thought it said that

[00:21:00] Speaker 01:
The issue is once they're restrained.

[00:21:05] Speaker 01:
We didn't say in that decision that it was wrong to put weight on the back while Mr. Weigel was still struggling.

[00:21:18] Speaker 01:
But once he was bound, he could not run back onto the highway, which was the problem to start with.

[00:21:27] Speaker 01:
then to continue to use that force, given the risk of death, was excessive.

[00:21:35] Speaker 01:
And so I thought that's how I described the law when I asked my first question and asked whether you agree with that as being the clearly established law.

[00:21:45] Speaker 01:
If that is, then the issue here is, was he restrained?

[00:21:51] Speaker 07:
Well, a couple of things.

[00:21:52] Speaker 07:
No, he was not fully restrained, Your Honor, until the hobble chain

[00:21:56] Speaker 07:
was placed, which was at the very end.

[00:21:59] Speaker 07:
And it was literally, I mean, there's no question in the record that immediately when the hobble chain was attached, Officer McFarland released all pressure.

[00:22:12] Speaker 07:
You know, you can see in the video as he starts to come back away, you can only see his upper portion.

[00:22:17] Speaker 07:
We don't see Mr. Krueger.

[00:22:18] Speaker 07:
But it's clear that as the hobble chain, you can hear it being applied.

[00:22:22] Speaker 07:
But that's the issue.

[00:22:23] Speaker 01:
McFarland is coming.

[00:22:24] Speaker 01:
You agree that that's the issue.

[00:22:25] Speaker 01:
And then the second question is, because I see opposing counsel shaking his head, is whether the evidence supports conclusively one side or the other.

[00:22:34] Speaker 07:
Well, you know, the trial court clearly found that Mr. Kruger was continuing to resist, at least to some degree,

[00:22:46] Speaker 07:
throughout the entire incident.

[00:22:47] Speaker 03:
There's no finding anywhere.

[00:22:49] Speaker 03:
The video doesn't show that though, doesn't it?

[00:22:51] Speaker 03:
The video shows him motionless for almost 90 seconds, and McFarland was still on him, and Crockett was still on him.

[00:22:57] Speaker 03:
This is before they put the shackles on him.

[00:22:59] Speaker 03:
He was motionless.

[00:23:00] Speaker 03:
Not long after that, they say he's not breathing.

[00:23:03] Speaker 07:
And this is the problem we run into, Your Honor.

[00:23:06] Speaker 03:
They were still on top of him.

[00:23:07] Speaker 03:
He was subdued, and they were on top of him.

[00:23:10] Speaker 03:
He was laying prone.

[00:23:11] Speaker 03:
His hands were handcuffed.

[00:23:14] Speaker 03:
Then they put the shackles on him.

[00:23:16] Speaker 03:
He was subdued.

[00:23:17] Speaker 07:
And this is why the law with regard to use of force and qualified immunity is so important and difficult, as Your Honor mentioned earlier in some cases, because everything has to be viewed in totality of circumstance and in context and in continuum.

[00:23:35] Speaker 07:
And so what you have in this case is a continuum

[00:23:39] Speaker 07:
This extreme violence and resistance, it continues even after he's handcuffed.

[00:23:47] Speaker 07:
We see him kick Deputy Standifer hard enough to knock him backwards.

[00:23:51] Speaker 03:
He's subdued at some point.

[00:23:53] Speaker 03:
They're still sitting on him.

[00:23:55] Speaker 03:
They still got him handcuffed.

[00:23:56] Speaker 03:
They still have him prone.

[00:23:58] Speaker 03:
Why isn't it at a minimum, as the district court found, a question of fact for the jury to decide?

[00:24:05] Speaker 07:
Because, Your Honor, M. Weigel, as the court recognized and the concurrence,

[00:24:10] Speaker 07:
There was at least a three minute period after which one of the officers was so comfortable with the situation that he was to do that he left and went in his car to warm his hands.

[00:24:22] Speaker 07:
That's not our situation.

[00:24:24] Speaker 07:
Our situation is he is handcuffed.

[00:24:26] Speaker 07:
He's continuing to resist and struggle.

[00:24:28] Speaker 07:
So the decision is made.

[00:24:29] Speaker 07:
Well, let's put.

[00:24:30] Speaker 07:
When they put those on, he was subdued.

[00:24:35] Speaker 07:
No, Your Honor, he was not, because he can still kick and fight at that point.

[00:24:39] Speaker 03:
He can or he is.

[00:24:41] Speaker 01:
Was he resisting?

[00:24:43] Speaker 01:
That's important.

[00:24:45] Speaker 03:
The word subdued doesn't mean he might start kicking again.

[00:24:50] Speaker 07:
And that's where this court and the trial court has to look at this from the perspective of the officers on the scene.

[00:24:57] Speaker 07:
not the comfort of our offices and chambers.

[00:25:01] Speaker 03:
We know that.

[00:25:02] Speaker 03:
When we have a video that shows him subdued for 90 seconds, why would we not at least say, as the district court did, let's let the jury see that and see what they think?

[00:25:12] Speaker 07:
Because in context, from the perspective of the officers on scene, they had made a decision and an assessment of this individual under these facts that in addition to the cuffs on the ankle, we need to hobble chain

[00:25:26] Speaker 07:
which by the way is very different than a hog tie, which was the Cruz case.

[00:25:31] Speaker 04:
And it doesn't matter because Cruz wasn't decided on the basis of hog tie or hobble tie or whatever.

[00:25:37] Speaker 04:
So I think it's a difference without distinction or distinction without a difference.

[00:25:42] Speaker 04:
Call it a hog tie, hobble tie, whatever.

[00:25:44] Speaker 04:
The issue is whether the video is enough to create a jury question.

[00:25:53] Speaker 07:
I think it's not, Your Honor.

[00:25:54] Speaker 07:
I think based on the video and when viewed from the perspective of the officers on the scene, their assessment was, we need to hobble chain him.

[00:26:04] Speaker 07:
In addition, they were restraining him for that purpose.

[00:26:07] Speaker 04:
Does it matter at all if the defendant, in this case, the decedent, is any danger to the officers?

[00:26:16] Speaker 04:
Is that relevant at all?

[00:26:18] Speaker 07:
It clearly is.

[00:26:23] Speaker 07:
When the trial judges it, looking at the gram factors to assess the objective reasonableness, found all of the gram factors, including the threat.

[00:26:32] Speaker 04:
Only in the beginning.

[00:26:33] Speaker 04:
The trial court never did the assessment at the relevant time period.

[00:26:38] Speaker 04:
I mean, you know, the gram factors are not static during a police encounter.

[00:26:44] Speaker 04:
And so it may be that in the beginning of the encounter, that's how you weigh them.

[00:26:51] Speaker 04:
A reasonable officer has to be aware that things change.

[00:26:55] Speaker 04:
And when the guy is no longer a danger to me, I can't use force that might kill him.

[00:27:03] Speaker 07:
I see that my time is up.

[00:27:05] Speaker 07:
Answer the question and then... You're right.

[00:27:10] Speaker 07:
An officer does have to exercise some judgment.

[00:27:13] Speaker 07:
And that's exactly the point I'm trying to make, Your Honor, which is in the judgment of these officers in real time,

[00:27:20] Speaker 07:
in the middle of the highway with this particular individual, the assessment was we need to hobble chain in addition to the ankle.

[00:27:29] Speaker 07:
And as soon as that was done, all pressure was released.

[00:27:32] Speaker 07:
I think that's consistent with the court's decision in Weigel and with all due respect

[00:27:39] Speaker 07:
The crew's decision did very clearly distinguish between a hog tie and a hobble chain, and the reason for that has to do with the potential pressure on the diaphragm when you hog tie someone versus allowing room for them to extend their legs with a hobble chain.

[00:27:55] Speaker 01:
Thank you.

[00:27:56] Speaker 01:
Any other questions?

[00:27:57] Speaker 01:
Thank you, Counsel.

[00:27:57] Speaker 07:
Thank you.

[00:28:06] Speaker 01:
You're going to have to pronounce your name for me, Mr. Jerries.

[00:28:09] Speaker 01:
And you're in 24-7066 and your clients are?

[00:28:17] Speaker 02:
Lieutenant Crockett, only Lieutenant Crockett.

[00:28:20] Speaker 02:
With what department?

[00:28:21] Speaker 02:
The Sheriff's Department, Wagner County Sheriff's Office.

[00:28:27] Speaker 02:
May it please the court, my name is Steve Gehrys.

[00:28:29] Speaker 02:
I represent Lieutenant Elizabeth Crockett.

[00:28:33] Speaker 02:
I think that it's important for the court

[00:28:35] Speaker 02:
to recognize exactly what the district court found with regard to the facts as they pertain to Lieutenant Crockett.

[00:28:45] Speaker 02:
And the court found that after observing Mr. Krueger kick an officer, that would have been Deputy Standifird, she assisted in kneeling down on Mr. Krueger's left buttock and upper left thigh and assisted in placing the leg irons on him.

[00:29:01] Speaker 02:
Lieutenant Crockett kneeled down on

[00:29:03] Speaker 02:
Mr. Kruger's left buttock and left upper thigh for approximately 45 seconds to a minute total until he had been placed in leg irons.

[00:29:14] Speaker 02:
She then left the area and went to her vehicle and had no further contact with Mr. Kruger.

[00:29:20] Speaker 03:
That is... I thought the district court also made a finding that she placed her weight on his back along with the other officers.

[00:29:26] Speaker 03:
Said that at some point.

[00:29:28] Speaker 02:
The court does say that, but...

[00:29:31] Speaker 03:
And looking at the video, it's hard to tell.

[00:29:35] Speaker 03:
Is it his lower back?

[00:29:37] Speaker 03:
Is it his upper left thigh?

[00:29:40] Speaker 03:
I assume that's what we can imply from that, is that the district court is saying she's in this area of his back.

[00:29:47] Speaker 02:
Well, I think the court is meaning backside rather than his back.

[00:29:52] Speaker 03:
I mean, it's a question of fact, I think.

[00:29:55] Speaker 02:
I don't think it's a question of fact.

[00:29:56] Speaker 02:
When you look at the video, it's clear that her knee is on his buttock, and it's also clear

[00:30:01] Speaker 02:
that she is there to hold that leg still for the purpose of the leg irons being placed on.

[00:30:08] Speaker 02:
As soon as the leg iron is on, she leaves.

[00:30:11] Speaker 02:
She sees this kick.

[00:30:14] Speaker 02:
She sees Mr. Krueger kick Deputy Standifird.

[00:30:18] Speaker 02:
She goes to immobilize that leg so it can be

[00:30:23] Speaker 02:
leg iron to prevent that very action as soon as the leg irons on, she leaves and goes back to her car.

[00:30:30] Speaker 03:
Well, she's also still there.

[00:30:31] Speaker 03:
She's also still there.

[00:30:32] Speaker 03:
I think she's there at the end when he's subdued for a good 90 seconds.

[00:30:35] Speaker 03:
He's not moving.

[00:30:36] Speaker 03:
She's still there.

[00:30:37] Speaker 03:
The other officer is still there.

[00:30:39] Speaker 03:
That's the failure to intervene claim, right?

[00:30:42] Speaker 03:
Even if she doesn't sit on his back, even if she's just over here, she's sitting there as he's motionless.

[00:30:49] Speaker 02:
The record is that she went back to her car.

[00:30:52] Speaker 02:
and has no, and doesn't come back.

[00:30:53] Speaker 03:
I've had that before that.

[00:30:55] Speaker 03:
The defendant intervened while he's motionless.

[00:30:58] Speaker 03:
She's sitting on him.

[00:30:59] Speaker 03:
The other officer sitting on him.

[00:31:01] Speaker 03:
I'm not talking right now about excessive force itself.

[00:31:04] Speaker 03:
I'm talking about the failure to intervene.

[00:31:06] Speaker 02:
Well, we could talk about the failure to intervene.

[00:31:08] Speaker 03:
When he's motionless and being subdued in that way.

[00:31:10] Speaker 02:
She's holding down his leg for the leg guards.

[00:31:12] Speaker 03:
As soon as the leg guards.

[00:31:14] Speaker 03:
Assume she's not on his back.

[00:31:16] Speaker 03:
Assume she's watching the other officer who's sitting on him and he's subdued.

[00:31:20] Speaker 03:
That's what she's doing.

[00:31:22] Speaker 02:
Well, we can talk about the failure to intervene claim.

[00:31:25] Speaker 02:
The failure to intervene claim was not properly pled in this case at all.

[00:31:30] Speaker 02:
In fact, if you look at the specific paragraphs of plaintiff's fourth amended complaint, they admitted their complaint four times and never clarified this issue at all.

[00:31:40] Speaker 02:
In the fourth amended complaint, if you look at paragraphs 30 and 31, which they cite to,

[00:31:45] Speaker 02:
Those claims are largely against the EMS providers standing by.

[00:31:49] Speaker 04:
But they say all state officers and failed to lend assistance.

[00:31:55] Speaker 04:
I mean, we have case law that is pretty forgiving on failure to intervene claims.

[00:32:02] Speaker 02:
Well, that's a giant catch-all.

[00:32:04] Speaker 02:
I guess a plaintiff could put that in any claim while we claim all claims against all defendants in all manner.

[00:32:09] Speaker 04:
Well, that's not exactly what they said.

[00:32:10] Speaker 04:
It's in the same paragraph.

[00:32:13] Speaker 04:
And it talks about all state actors who failed to assist him in his cries for help.

[00:32:22] Speaker 04:
It's a failure to intervene claim.

[00:32:24] Speaker 02:
Well, the failure to intervene claim, again, we don't believe it was properly played.

[00:32:28] Speaker 04:
Well, let's say we believe it is.

[00:32:29] Speaker 04:
What's your response then to Judge Moritz's?

[00:32:32] Speaker 02:
Well, my response to Judge Moritz is that

[00:32:39] Speaker 02:
We still believe that she would have qualified immunity for that claim, given her minimum contact with the defendant, and that she didn't actually see that.

[00:32:49] Speaker 02:
I don't think that there is direct evidence.

[00:32:50] Speaker 00:
She didn't see what?

[00:32:51] Speaker 02:
She didn't see that there was a substantial significant weight.

[00:32:55] Speaker 02:
She didn't see that he was subdued?

[00:32:56] Speaker 03:
She couldn't see that he was subdued at this point?

[00:33:00] Speaker 02:
Well.

[00:33:00] Speaker 03:
And another officer was sitting on his back?

[00:33:02] Speaker 02:
If we go to the Wagle case.

[00:33:05] Speaker 04:
Well, she testified in her deposition she was aware other officers.

[00:33:08] Speaker 04:
were placing weight on his back.

[00:33:11] Speaker 02:
But that still has to be significant.

[00:33:14] Speaker 04:
Well, it was significant enough to break his ribs.

[00:33:18] Speaker 04:
And we have case law that talks about that you look at the combined weight of all of the officers.

[00:33:26] Speaker 04:
I think Lieutenant Crockett alone, you're 200 pounds on a 156 pound defendant.

[00:33:35] Speaker 02:
The only evidence

[00:33:37] Speaker 02:
that Crockett would have been subjected to of anyone being on Mr. Kruger's back was a foot on his shoulder at that time.

[00:33:46] Speaker 02:
When she was down there on his buttock and his upper thigh, there's no one else on his back other than McFarland, I think, who had his foot on his shoulder.

[00:33:55] Speaker 02:
And so the significant weight on his back, I mean, if we look at the Weigel case, I don't believe that that case is sufficiently particularized to the facts of this case with regard to Crockett.

[00:34:07] Speaker 02:
as to place the constitutional question beyond debate.

[00:34:11] Speaker 02:
In Weigel, it says that the law was clearly established that applying pressure to Mr. Weigel's upper back once he was handcuffed and his legs restrained was unconstitutional.

[00:34:26] Speaker 02:
When she was there, his legs weren't restrained.

[00:34:29] Speaker 02:
In fact, she had just seen him

[00:34:31] Speaker 02:
Deputy Standifird, and that's why she was restraining his leg.

[00:34:35] Speaker 02:
And she leaves the area as soon as the leg irons are on.

[00:34:39] Speaker 02:
But back to the instance of whether or not the failure to intervene claim was properly pled, even the district court says that it's abundantly unclear.

[00:34:51] Speaker 02:
And this court said in the Zachari versus Gates case, 561 Fed 3rd, 1076 at page 1086, when a claim has not been pled,

[00:35:01] Speaker 02:
The appropriate response by the district court is not to determine whether such a claim can be read into the complaint, but rather to determine whether amendments should be allowed at that stage of the case.

[00:35:14] Speaker 02:
And so that's what the court should have done.

[00:35:16] Speaker 02:
There's been argument by the appellee's counsel that Ms.

[00:35:22] Speaker 02:
Crockett wasn't prejudiced

[00:35:25] Speaker 02:
She absolutely was prejudiced because we didn't argue a failure to intervene claim in our motion for summary judgment.

[00:35:32] Speaker 02:
We tried to bring it up in our reply to plaintiff's response where we're limited in the number of pages that we can write and we have to address everything else.

[00:35:41] Speaker 02:
In fact, we even filed a motion to reconsider

[00:35:45] Speaker 02:
And the court said that it was improper because we were re-arguing things that we could have argued.

[00:35:51] Speaker 02:
Well, we didn't know to argue those things because it wasn't sufficiently pled on the failure to intervene.

[00:35:58] Speaker 02:
We believe the failure to intervene should not even be looked at by this court with regard to Lieutenant Crockett because it wasn't properly raised against her even after the fourth amended complaint.

[00:36:13] Speaker 02:
And it's also important for this court, I hope, to recognize, with regard to Lieutenant Crockett and Deputy Lott, the courts said when they were reviewing the Graham Factors, it said, the Graham Factors weigh in her favor.

[00:36:30] Speaker 02:
As to the first, Lieutenant Crockett received Deputy Orr's radio request stating, one fighting.

[00:36:36] Speaker 02:
Mr. Krueger's resistance of officers in the middle of the highway posed an immediate threat to the safety of himself

[00:36:43] Speaker 02:
the deputies and the officers, as well as others on the highway, as to the third factor, Mr. Krueger was actually resisting arrest.

[00:36:53] Speaker 02:
We know when she showed up at the scene and first had contact with Mr. Krueger, the district court found that he was still resisting at that time.

[00:37:01] Speaker 02:
In fact, Lieutenant Crocker saw him kick Deputy Standifird, which led her to restrain that leg in order to give enough time for the officers

[00:37:12] Speaker 02:
to put leg irons.

[00:37:15] Speaker 02:
We believe that those cases that were cited with regard to the established constitutional law on the question of qualified immunity against her for restraining the leg, which she just saw kick the tepid, don't establish that what she did was improper.

[00:37:34] Speaker 02:
We believe that the failure to intervene claim should be disregarded as it was not properly pled.

[00:37:41] Speaker 02:
And that when you talk about the Weigel and even Cruz cases, the Cruz case says it's clearly established that putting substantial or significant pressure on a suspect's back, which she didn't do, when that suspect is in a face down position after being subdued,

[00:38:04] Speaker 02:
and or incapacitated constitutes excessive force.

[00:38:08] Speaker 02:
He clearly wasn't incapacitated or subdued.

[00:38:11] Speaker 02:
He had just kicked Deputy Standifird.

[00:38:13] Speaker 02:
She's there for 45 to 60 seconds and immediately leaves the scene.

[00:38:17] Speaker 02:
My time is up.

[00:38:19] Speaker 02:
Thank you very much.

[00:38:20] Speaker 05:
Thank you.

[00:38:32] Speaker 01:
Mr. Kemen, you're not splitting time with anyone, is that right?

[00:38:42] Speaker 00:
Good morning, and may it please the court, Chris Kemet on behalf of plaintiffs, including Jeffrey Krueger's mother, Pamela, who's with us in court today.

[00:38:53] Speaker 00:
We are here because the defendants escalated a traffic stop that never should have happened into a fatal encounter.

[00:39:01] Speaker 00:
And they did so by using serious and ultimately deadly levels of force that were wholly disproportionate to the dangers that they faced.

[00:39:10] Speaker 00:
This encounter began because Orr wanted to get his partner, Phillips, some practice with DUI enforcement.

[00:39:17] Speaker 00:
And so he directed him to stop the traffic.

[00:39:19] Speaker 04:
The stuff that happened before the traffic stopped isn't really before us, is it?

[00:39:24] Speaker 00:
I think it's only before you in the sense that when we're looking at the totality of the circumstances, the fact that they pulled him over for no reason, the fact that they pulled their guns on him,

[00:39:38] Speaker 00:
and escalated that situation.

[00:39:40] Speaker 00:
I think that that's all relevant to what's before you.

[00:39:45] Speaker 04:
But it's certainly clear that... It's not part of the district court's findings, is it?

[00:39:54] Speaker 00:
I think inherently in a Fourth Amendment case, you've got all the totality of the circumstances.

[00:40:01] Speaker 00:
So I think that it is relevant, but I also don't think that it's crucial to where we are today.

[00:40:07] Speaker 00:
So turning forward, I think that a helpful place to start is with Cruz, both because it presents a straightforward jurisdictional argument, it presents a straightforward issue of clearly established law, and Cruz is the hogtied case.

[00:40:27] Speaker 00:
And it both directly and indirectly requires affirmance of the judgments against all of the individual defendants.

[00:40:37] Speaker 00:
To begin with the jurisdictional issue, Cruz has a very clear holding.

[00:40:44] Speaker 00:
It says, we hold that officers may not apply the hog-tie technique when an individual's diminished capacity is apparent.

[00:40:52] Speaker 00:
The district court issued an equally clear ruling on this particular point, saying, plaintiffs have presented sufficient disputed evidence to meet their burden to show that officers used a hog-tie restraint on Mr. Krueger.

[00:41:06] Speaker 04:
Didn't the district court say, are you talking about this district court or the one in Krueger?

[00:41:11] Speaker 00:
This district court.

[00:41:12] Speaker 04:
I thought he said hobble-tie.

[00:41:13] Speaker 04:
There is a difference.

[00:41:15] Speaker 00:
There is a difference.

[00:41:16] Speaker 00:
So he says hog-tie restraint.

[00:41:19] Speaker 00:
So this is in the clue- In the district court in our case.

[00:41:23] Speaker 00:
In our case.

[00:41:24] Speaker 00:
Here, this is a direct quote from the district court in our case.

[00:41:27] Speaker 00:
Plaintiffs have presented sufficient disputed evidence to meet their burden to show that officers used a hogtie restraint on Mr. Krueger when his diminished capacity was apparent.

[00:41:38] Speaker 00:
That's a direct quote from the decision involving McFarland and Craig.

[00:41:45] Speaker 00:
So he's found a genuine dispute of material fact about hogtie,

[00:41:49] Speaker 00:
he found a genuine dispute of material facts about diminished capacity.

[00:41:55] Speaker 00:
And McFarland and Craig only, they don't take issue with the clearly established law there.

[00:42:01] Speaker 00:
All they take issue with are those two findings that there are these genuine disputes of material fact.

[00:42:07] Speaker 00:
And that's something that the court has no jurisdiction to consider.

[00:42:11] Speaker 00:
So that tosses out McFarland and Craig's hogtie arguments.

[00:42:16] Speaker 04:
This course would also farm because the distro... Well, he... I mean, the hobble or hogtie was not placed on him until the very end.

[00:42:26] Speaker 04:
I mean, he was likely already dead by the time they put that on him.

[00:42:32] Speaker 04:
I mean, is that really where we focus here in terms of... We're supposed to look at the moment when the force was applied.

[00:42:42] Speaker 04:
And are you suggesting that we should be focused

[00:42:46] Speaker 04:
on when they put the tie on between the leg restraints and the hand restraints?

[00:42:53] Speaker 00:
Oh, to be clear, we think that there are a number of different bases for the, for using excessive force in this case, slamming his head, using the taser repeatedly, the Weigel plane with respect to putting weight on his back, and then the... Yeah, and Weigel, there's no argument of a hog or a hobble tie or anything, right?

[00:43:12] Speaker 00:
No, there's not.

[00:43:13] Speaker 00:
I mean, so this case also fits comfortably under Weigel.

[00:43:17] Speaker 00:
It's just we started with Cruz because much like the situation in Cruz, they attach the hogtie and the man dies almost immediately after the hogtie is applied.

[00:43:26] Speaker 00:
So I think that those two are quite similar.

[00:43:29] Speaker 00:
But this court also... Let's talk about the Weigel issue.

[00:43:31] Speaker 01:
Yes, Your Honor.

[00:43:34] Speaker 01:
Is there clearly established law prohibiting that sort of pressure?

[00:43:39] Speaker 01:
on the back of a suspect who's still resisting.

[00:43:45] Speaker 00:
There is clearly established law.

[00:43:48] Speaker 01:
I'm sorry, go ahead.

[00:43:52] Speaker 00:
So I think that Wilde's point doesn't turn on whether or not there is continued resistance.

[00:43:58] Speaker 00:
I think it turns on whether he's subdued or restrained.

[00:44:03] Speaker 00:
If you're still resisting, you're not subdued and restrained.

[00:44:11] Speaker 00:
which isn't clearly established law, but it finds applying Weigel that the facts that the court addressed in Lynch were clearly established.

[00:44:19] Speaker 00:
That's a case where the individual, unlike here, did continue to resist after an ankle restraint was put on him.

[00:44:27] Speaker 00:
So he was face down.

[00:44:28] Speaker 01:
So someone is still resisting.

[00:44:32] Speaker 01:
But he was restrained.

[00:44:36] Speaker 01:
Mr. Krueger was resisting the use of that force on his back.

[00:44:40] Speaker 01:
It's not clearly established as being unproper.

[00:44:43] Speaker 01:
Maybe it's improper, but it's not clearly established law.

[00:44:48] Speaker 01:
I'm going to focus on that.

[00:44:50] Speaker 01:
We'll take this step by step.

[00:44:52] Speaker 00:
Sure.

[00:44:52] Speaker 00:
I think that so long as he's restrained, even if he is moving his feet, and moving his feet is probably because he is being suffocated to death, not because he's resisting.

[00:45:02] Speaker 00:
So if he's moving his feet, if the officers have control over the situation,

[00:45:07] Speaker 00:
then I think he is still restrained and Weigel still applies with full force.

[00:45:12] Speaker 01:
And what case clearly establishes that?

[00:45:15] Speaker 01:
That even if he's resisting, if he's restrained, you can't use that force?

[00:45:19] Speaker 01:
Do we have a case saying that?

[00:45:20] Speaker 00:
That is what happened in Lynch and Lynch said that Weigel provided clearly established law and that that was a jury question.

[00:45:29] Speaker 01:
Lynch is not

[00:45:32] Speaker 00:
It is not precedential, so it's only persuasive.

[00:45:36] Speaker 01:
However, it's nothing with regard to clearly established law.

[00:45:42] Speaker 01:
It's just not coincidental.

[00:45:44] Speaker 00:
Correct, but part of the finding in Lynch is that at a time prior to the incident here, Weigel was clearly established and that Weigel applied to the facts in Lynch.

[00:45:54] Speaker 03:
So that's the point I'm trying to... And in Lynch, qualified immunity was denied.

[00:46:01] Speaker 00:
Correct.

[00:46:01] Speaker 03:
And the suspect was still resisting or moving his feet, which is... Yes, he was still... So the suspect in Lynch was still resisting after an ankle chain was put on him.

[00:46:15] Speaker 00:
But the court found that he was still restrained at that point because they had chained his ankles.

[00:46:19] Speaker 03:
And so you're saying he was under control.

[00:46:21] Speaker 03:
He was under control.

[00:46:22] Speaker 03:
Even if he was still moving.

[00:46:23] Speaker 00:
Yes.

[00:46:24] Speaker 04:
So this is just... And at the end of the day, isn't that the issue?

[00:46:27] Speaker 04:
I mean, we're talking about use of force

[00:46:32] Speaker 04:
If you've got him restrained, I mean, come back in the police car, if he's banging his head against the window, I guess he's resisting, but he's no danger to anybody except himself.

[00:46:44] Speaker 00:
Yes.

[00:46:45] Speaker 00:
No, I think that's, I think that's 100% true.

[00:46:47] Speaker 00:
So that's why in Korea, for instance,

[00:46:50] Speaker 00:
the court commented that Mr. Perea was subdued at a time when he wasn't handcuffed at all.

[00:46:56] Speaker 00:
He was just lying on the stomach with two police officers at his back.

[00:46:59] Speaker 00:
So if you look at this case, and I think that there are, at all of the times when the officers apply pressure to his back, that Mr. Kruger was restrained.

[00:47:07] Speaker 00:
But just to pick some of the easier times in the case.

[00:47:10] Speaker 04:
Well, let me ask you this.

[00:47:11] Speaker 04:
How do the officers in the heat of the moment distinguish between someone who's kicking and flailing about

[00:47:20] Speaker 04:
because they can't breathe or to try and get away.

[00:47:23] Speaker 04:
I mean, you know, we're asking them to make a pretty nuanced decision.

[00:47:30] Speaker 00:
So I think that it's a little bit less complicated in this case.

[00:47:33] Speaker 00:
So Weigel, for instance, quoted a training that the officers there received that warned them not to mistake an officer, a subject moving their body because they were unable to breathe with resistance.

[00:47:44] Speaker 00:
So that's already in the case law.

[00:47:46] Speaker 00:
But the officers here were also trained that once you've got somebody and they're handcuffed and prone, what you have to do, even if they're resisting, is you get them on their side or you get them seated.

[00:47:58] Speaker 00:
So they were trained on that.

[00:48:00] Speaker 00:
And that's exactly what they did not do in this case.

[00:48:03] Speaker 01:
That's clearly established law that not following that training and that police manual is a constitutional violation.

[00:48:10] Speaker 01:
That's what you need to do.

[00:48:12] Speaker 01:
The manual is not going to clearly establish the law.

[00:48:16] Speaker 01:
And you may be very right that there's a violation.

[00:48:19] Speaker 01:
But what we're talking about is, what does the law say?

[00:48:26] Speaker 01:
I'm not sure the law is quite as clear as you're saying about what's clearly established.

[00:48:31] Speaker 01:
So if someone, you get on top of somebody, you have two officers on top of somebody, and he's not doing anything.

[00:48:39] Speaker 01:
Yes.

[00:48:39] Speaker 01:
Someone gets up and says, we shouldn't strain him, and then the guy can fight off the person who's on top of him at the time.

[00:48:45] Speaker 01:
What's an officer supposed to do?

[00:48:47] Speaker 01:
That's why they handcuff, tie their feet, whatever.

[00:48:54] Speaker 01:
That's why even though the person is not resisting at that minute, the officers may still properly be concerned about what will happen if they stop using that force.

[00:49:06] Speaker 01:
And you'll agree with that?

[00:49:08] Speaker 00:
Of course, Your Honor.

[00:49:09] Speaker 00:
But that's why I would posit that what the police should do in that instance is to follow their training, which is you could continue to restrain them but put them on their side.

[00:49:18] Speaker 01:
But I want to come back to the clearly established law issue.

[00:49:20] Speaker 01:
Is that really legally relevant here?

[00:49:23] Speaker 01:
I think they're why go on that because that we're not going to make the police manual clearly established fourth of course.

[00:49:34] Speaker 01:
Okay.

[00:49:35] Speaker 00:
Maybe it will be maybe will be but I think it speaks to the reasonableness and I'm bringing this up only because your honor was asking what the officers should have done in the circumstance and I was trying to explain that there was that they should have just followed their training that they weren't without recourse that they this wasn't something that was

[00:49:53] Speaker 00:
on them because it's what their department puts upon them.

[00:49:55] Speaker 00:
So Weigel, of course, provides clearly established law.

[00:49:59] Speaker 00:
And it said in Weigel that applying pressure, and it didn't say significant pressure, to Mr. Weigel's back at a time when he was prone and handcuffed and his feet were restrained.

[00:50:14] Speaker 00:
That was a violation of clearly established law because of the risk of positional asphyxiation.

[00:50:19] Speaker 00:
So the district court found that that is exactly what we have here.

[00:50:23] Speaker 00:
Mr. Krueger was prone, he was restrained, he was handcuffed, and ultimately his ankles were shackled and then he was even hogtied.

[00:50:33] Speaker 00:
And throughout that time, the officers remained on his back.

[00:50:37] Speaker 00:
McFarland remained on his back until the 4 or 5 mark in the POTS video when he's already stopped breathing.

[00:50:44] Speaker 00:
So there is no kind of question of clearly established law here because nobody disputes that putting weight on somebody's back when they meet these conditions is constitutional and that it's not clearly established.

[00:50:59] Speaker 00:
And the District Court found, as a factual matter, which we're bound by today, that they did all of those things that Weigel says make out a clearly established violation of the law.

[00:51:11] Speaker 04:
So you, let me just make sure I understand.

[00:51:13] Speaker 04:
You're saying that under Weigel it's clearly established that once they had him in the leg shackles and the handcuffs, they could no longer put weight on his back.

[00:51:24] Speaker 04:
They had to either get off or turn him to his side.

[00:51:28] Speaker 04:
Is that, am I understanding correctly?

[00:51:30] Speaker 00:
I think Weigel just requires restraint and so it's handy that in Weigel there is an ankle restraint.

[00:51:37] Speaker 00:
And it says that he is restrained then.

[00:51:39] Speaker 00:
And here we have an ankle restraint plus pressure to the back.

[00:51:42] Speaker 00:
So that makes it really clear.

[00:51:44] Speaker 00:
But the point in Weigel, I don't think, was about an ankle restraint per se.

[00:51:48] Speaker 00:
It was about the fact that the individual was restrained.

[00:51:51] Speaker 01:
So here, if you go... Well, the ankle restraint was really important there because the problem with Mr. Weigel is he was running onto the highway.

[00:51:57] Speaker 00:
Yes.

[00:51:59] Speaker 00:
I mean, that situation was so out of control that a civilian was about to hit him with a fence post right before that point.

[00:52:04] Speaker 00:
In our situation in contrast, if you go to the 157 point of the POTS video, then what you're going to see is five different officers all applying their body weight to some part of the back of Mr. Weigel.

[00:52:18] Speaker 00:
There's no more real estate.

[00:52:19] Speaker 00:
If another officer wanted to kneel on him, it would not be possible.

[00:52:23] Speaker 01:
And that was after he was the ankle hobble, whatever you call it.

[00:52:28] Speaker 00:
This is before, so.

[00:52:29] Speaker 04:
It's before the hobble, but his

[00:52:32] Speaker 04:
ankles are taught, are restrained, right?

[00:52:35] Speaker 00:
His, his, both of his feet are held down at this point.

[00:52:38] Speaker 00:
So let me, I think it might be helpful if I, if I quickly walk through different points in that POTS video.

[00:52:42] Speaker 00:
Yeah, that's very important.

[00:52:43] Speaker 00:
All right.

[00:52:43] Speaker 00:
So there's a, there is, at some point he thrashes his leg a little bit because he is held down on his stomach.

[00:52:49] Speaker 00:
That's about the 154, 155 mark of the POTS video.

[00:52:53] Speaker 00:
At 157, starting at 157, McFarland is squarely on his back with two knees.

[00:53:00] Speaker 00:
Um,

[00:53:01] Speaker 00:
Lot is standing on his right shoulder.

[00:53:05] Speaker 00:
Crockett is on either his lower back and thigh or his upper buttocks and thigh.

[00:53:11] Speaker 00:
Standiford is holding down one leg and also applying an ass to it to cause pain.

[00:53:18] Speaker 00:
And Potts is holding down his other legs.

[00:53:21] Speaker 00:
We don't know how much all these people weigh, but we know that McFarland is 250 pounds.

[00:53:28] Speaker 00:
We know that Crockett is 200 pounds.

[00:53:30] Speaker 01:
Let me ask you a question.

[00:53:32] Speaker 01:
While in that position, he kicked McFarland, is that right?

[00:53:35] Speaker 00:
No.

[00:53:35] Speaker 01:
That's not true.

[00:53:36] Speaker 00:
Not true.

[00:53:37] Speaker 01:
Did he ever kick McFarland?

[00:53:39] Speaker 00:
No.

[00:53:40] Speaker 00:
He kicked Stanford, I think.

[00:53:42] Speaker 00:
So that was just before this.

[00:53:44] Speaker 00:
So at this point, he has five officers.

[00:53:47] Speaker 00:
He is as subdued as subdued can be at this point because he's got a thousand pounds of officers holding down his body.

[00:53:54] Speaker 00:
He can't move at all.

[00:53:55] Speaker 00:
And we can see the body cam video.

[00:53:57] Speaker 04:
But he's subdued because those officers are on him.

[00:54:02] Speaker 04:
If they all got up,

[00:54:04] Speaker 04:
Did he have handcuffs on?

[00:54:06] Speaker 04:
Did he have labor?

[00:54:06] Speaker 00:
He was handcuffed.

[00:54:07] Speaker 00:
Yeah, he was handcuffed at that time.

[00:54:09] Speaker 00:
So he is handcuffed prior to the beginning of the POTS video.

[00:54:15] Speaker 00:
Later in the Phillips body cam video, he's handcuffed.

[00:54:19] Speaker 00:
And there's a period in that video where Phillips is on his back when he is restrained and on his stomach.

[00:54:26] Speaker 00:
And that's also a potential basis for performance.

[00:54:28] Speaker 00:
But at this particular point in time, so he has five police officers on him.

[00:54:33] Speaker 00:
And then between 217 and 237 in the video, the EMT comes up to speak to him.

[00:54:39] Speaker 00:
And at this point, he's no longer capable of speech, and all he does is grunt and moan, which if you put together testimony from the two plaintiff's experts, is a sign of agonal respiration.

[00:54:52] Speaker 00:
It's a sign that he is about to die.

[00:54:54] Speaker 00:
So plaintiff's medical expert says, at this point, and everybody can hear this, Lafou standing next to him, McFarland says he can hear it,

[00:55:02] Speaker 00:
One of the other defendants, Blair, who's standing nearby, says he can hear this.

[00:55:07] Speaker 00:
He is about to die.

[00:55:09] Speaker 00:
He is not moving.

[00:55:10] Speaker 00:
You can see the video from 157 through 405.

[00:55:13] Speaker 00:
He doesn't flinch.

[00:55:15] Speaker 00:
He doesn't move a finger.

[00:55:16] Speaker 00:
He doesn't move a leg.

[00:55:18] Speaker 00:
It doesn't matter who's on him.

[00:55:19] Speaker 00:
He is subdued.

[00:55:20] Speaker 00:
He is potentially not conscious for all of this time.

[00:55:25] Speaker 00:
So by 237, at the very latest, he is about to die.

[00:55:30] Speaker 00:
You can hear the officers continuing to remain on him after that.

[00:55:33] Speaker 00:
You can hear Crockett laughing at the three-minute mark because this is not a situation that is a split-second dangerous situation for the police.

[00:55:41] Speaker 00:
They're telling jokes.

[00:55:43] Speaker 00:
By the 311 mark, his feet are shackled by the ankles and McFarland continues to remain on his back after that point.

[00:55:53] Speaker 00:
At about 354, the hog-tie restraint is applied to his back or, you know, binds his wrist to his ankles.

[00:56:03] Speaker 00:
And then at 405, McFarland finally gets off his back because at that point they've realized that he has stopped breathing.

[00:56:11] Speaker 00:
So throughout the entirety of that time, he was subdued, pressure was applied to his back, and that was deadly force.

[00:56:19] Speaker 00:
There was no cause to use deadly force.

[00:56:21] Speaker 00:
There certainly wasn't a situation in which there was probable cause to believe that Mr. Kruger raised the specter of death or serious bodily injury to any of these officers as would be necessary to warrant the use of excessive force.

[00:56:37] Speaker 00:
So I think that this is an open and shut kind of use of excessive force under Weigel, and nobody disputes that Weigel has clearly established law, which is what we need here for qualifying energy.

[00:56:52] Speaker 04:
Are you done with that train?

[00:56:55] Speaker 04:
Let me talk to you about failure to intervene.

[00:56:57] Speaker 00:
That's just where I was going to go.

[00:56:58] Speaker 04:
That's great.

[00:56:59] Speaker 04:
You know, the complaint is not very well-plead on that claim.

[00:57:04] Speaker 04:
as against the officers.

[00:57:06] Speaker 04:
It's pretty clear you want to bring it against the EMT, I think two EMTs, but it is a stretch.

[00:57:15] Speaker 04:
The district court gave it to you, but why should we find it was adequately pled?

[00:57:24] Speaker 00:
To be clear, your honor, that could have been more clearly preg, but this court standard as stated in Fogarty versus Gallegos where they don't even say failure to intervene is really very low.

[00:57:35] Speaker 00:
So they say all law enforcement officials who fail to intervene are on the hook.

[00:57:39] Speaker 00:
That's we have law enforcement officials.

[00:57:41] Speaker 00:
There's the bit about Mr. Krueger calling out for help.

[00:57:44] Speaker 00:
Nobody provides him help.

[00:57:45] Speaker 00:
And it also incorporates the Potts body cam video, which shows all of the officers failing to intervene.

[00:57:50] Speaker 00:
But I want to pivot quickly because I think that there's a better point, which is that this court's case law is clear that you can still consider these sorts of theories of liability so long as there isn't prejudice.

[00:58:02] Speaker 00:
And this was actually litigated before the district court, like a few years ago, putting everybody on notice that failure to intervene was part of this case.

[00:58:10] Speaker 00:
So it's a little bit rich thing.

[00:58:15] Speaker 01:
When was this litigated?

[00:58:16] Speaker 01:
2022.

[00:58:17] Speaker 01:
Before this court or the district court?

[00:58:19] Speaker 01:
District court.

[00:58:20] Speaker 01:
In this case?

[00:58:21] Speaker 01:
In this case.

[00:58:23] Speaker 04:
Well, we just heard from counsel for Ms.

[00:58:25] Speaker 04:
Crockett.

[00:58:27] Speaker 04:
who said that when they filed the brief, they didn't even know there was a failure to intervene issue in the case, so they didn't argue it, and then they were left with just their reply with fewer pages.

[00:58:42] Speaker 04:
You know, that sounds like that might be some prejudice.

[00:58:45] Speaker 00:
Sure, Your Honor, but I think it's a little curious that Crockett has made that point.

[00:58:51] Speaker 00:
because Crockett moved to dismiss the third amended complaint, which is identical with the exception of the addition of body cam videos to the fourth amended complaint.

[00:58:59] Speaker 00:
And so Crockett moved to dismiss the third amended complaint.

[00:59:03] Speaker 00:
And plaintiffs opposed that in part by saying that Crockett was responsible for failing to intervene.

[00:59:11] Speaker 00:
So if you look at document number 116 on the docket, pages nine and 10,

[00:59:17] Speaker 00:
Plaintiffs are arguing that Crocket should stay in the case because of failure to intervene, and the district court then decides this motion to dismiss in an order in March of 2022, and it's document number 153, and you can look at pages four to six and note four.

[00:59:36] Speaker 00:
And in that decision,

[00:59:37] Speaker 00:
The district court makes clear that the failure to intervene claim was not raised as clearly as it could be, but he thinks that Crockett had notice of it and he says that it is part of that case.

[00:59:48] Speaker 00:
And so this is at the very outset of discovery.

[00:59:51] Speaker 00:
So the defendants all knew as of March 31st, 2022, that failure to intervene was part of this case and they went through all of discovery and had all of the opportunities

[01:00:03] Speaker 00:
to push back on that, particularly Crockett, who this was said in response to Crockett's motion.

[01:00:10] Speaker 00:
And you can see, so there's 15 months between that decision and when the defendants all filed for summary judgment.

[01:00:18] Speaker 00:
And you can tell that the defendants took this to heart, most of them, because if you look at the declarations that they filed with their summary judgment papers, most of them end with a series of paragraphs that are solely there to disclaim liability for failure to intervene,

[01:00:33] Speaker 00:
which would be a very curious thing to do if failure to intervene was not part of the case.

[01:00:38] Speaker 00:
So there's no prejudice to any of these folks for including failure to intervene.

[01:00:43] Speaker 00:
It's also the same nucleus of facts.

[01:00:45] Speaker 00:
And the district court also was empowered to treat the summary judgment of opposition from plaintiffs as a motion to amend under Rule 15.

[01:00:53] Speaker 00:
So I think failure to intervene should be in the case.

[01:00:56] Speaker 00:
And the district court has already made factual findings that every single one of the defendants saw the constitutional violations take place, had the opportunity to intervene, and didn't do so.

[01:01:11] Speaker 00:
That is a factual finding.

[01:01:12] Speaker 00:
It's in both of the district court's orders.

[01:01:15] Speaker 00:
And he says that plaintiffs have presented sufficient disputes of material fact.

[01:01:23] Speaker 00:
So that's something that this court doesn't have jurisdiction to reconsider.

[01:01:27] Speaker 00:
So it's in the case.

[01:01:28] Speaker 00:
There are factual findings applying it to every defendant.

[01:01:32] Speaker 00:
And so finding that there is this wider violation not only sweeps in the individuals who

[01:01:39] Speaker 00:
Did the Weigel violation themselves?

[01:01:41] Speaker 00:
It brings in all of the other defendants on a failure to intervene theory.

[01:01:46] Speaker 00:
Let me ask you.

[01:01:49] Speaker 01:
The fact that a constitutional violation is going on and someone and an officer sees it doesn't necessarily mean that the officer knows it's a constitutional violation.

[01:02:00] Speaker 01:
For example, let's take hog time and that's improper.

[01:02:06] Speaker 01:
according to our precedence, if it's someone who is mentally disabled at the time, what if an officer came up, saw someone being hogtied, but had no knowledge of the information that the officers hogtied the suspect to know that the suspect was mentally disabled from drugs or something like that.

[01:02:33] Speaker 01:
Would that, would the,

[01:02:36] Speaker 01:
officer who arrived at that point still be clearly in violation of a constitutional right at that point?

[01:02:43] Speaker 00:
Don't you have to make those distinctions and be... The way that this court has defined failure to intervene liability is just that there is a constitutional violation and it's seen by the other defendant

[01:03:01] Speaker 00:
and they had an opportunity to intervene and they didn't.

[01:03:03] Speaker 00:
So it doesn't make allowances for that.

[01:03:06] Speaker 01:
So I think under this course... Have we explicitly said that we don't make allowances for that or it just hasn't come up?

[01:03:13] Speaker 00:
I would say it just hasn't come up.

[01:03:15] Speaker 01:
I mentioned the hog tying is one example, but another might be the force used on someone's back is okay.

[01:03:27] Speaker 01:
at least it's not clearly established as wrong, if the person is struggling.

[01:03:32] Speaker 01:
And it may not be obvious to an officer several feet away whether the person is struggling or not, or what had happened just before.

[01:03:43] Speaker 01:
Would that make a difference in whether the officer is guilty of, is liable for failure to intervene?

[01:03:50] Speaker 00:
Respectfully, Your Honor, I don't think that's before this court because that would be a jury question and also because on the facts that we have them in this case, there's a very prolonged period of time where Mr. Krueger is just fully, thoroughly subdued and the officers remain on his back.

[01:04:09] Speaker 00:
It's not a fast moving situation.

[01:04:10] Speaker 00:
They don't need to make split second kind of judgments in order to navigate a tricky situation.

[01:04:18] Speaker 00:
There's just a situation where Mr. Kruger is near death.

[01:04:22] Speaker 00:
There's a whole lot of police officers on him.

[01:04:25] Speaker 00:
They're applying pressure on his back.

[01:04:28] Speaker 00:
And it is, at the very minimum, a jury question as to whether all of these folks committed failure to intervene, which the district court found that they did.

[01:04:42] Speaker 00:
All right.

[01:04:42] Speaker 00:
So we've moved through Cruz, Weigel, and failure to intervene.

[01:04:47] Speaker 00:
I do want to say that this court should also affirm on the two other bases that we briefed, one of which the district court directly reached and one of which the district court kind of sort of reached, which is the tasing.

[01:05:03] Speaker 00:
So first with respect to the head slam, we think this court should affirm the judgment of the district court because we're talking about a situation in which Mr. Krueger was pulled over for some minor traffic misdemeanors

[01:05:17] Speaker 00:
He's then yanked out of the car by his hair and he's slammed to the ground with truly an unusual level of force, sufficient to open a very nasty gash in his head and to break a significant number of his ribs.

[01:05:34] Speaker 01:
part of the action?

[01:05:35] Speaker 00:
There isn't.

[01:05:36] Speaker 00:
And the reason there isn't video of that is because Phillips either didn't turn on his body worn camera or didn't turn over the footage from the beginning of the incident.

[01:05:47] Speaker 00:
And I only raised the second possibility because

[01:05:50] Speaker 00:
In every case that I've ever seen, body-worn cameras begin with 30 seconds of silence because they back record the video part of it after you hit.

[01:06:01] Speaker 00:
It's always capturing the previous 30 seconds.

[01:06:04] Speaker 00:
And then the sound comes in 30 seconds, and we don't see that here, but we do see it with POTS.

[01:06:09] Speaker 01:
But regardless, Phillips didn't turn up.

[01:06:12] Speaker 01:
So the issue with respect to the slamming the head against the pavement is we don't know if that happened.

[01:06:20] Speaker 01:
The district court thought there was sufficient evidence for a jury to believe that that happened and it wasn't justified.

[01:06:27] Speaker 01:
Am I correct about that?

[01:06:29] Speaker 00:
Yes, Your Honor.

[01:06:30] Speaker 04:
We have testimony from one of the officers that they yanked him out of that car by the hair, right?

[01:06:35] Speaker 00:
Yes, and also that they brought him to the ground.

[01:06:39] Speaker 04:
Brought him to the ground, but they certainly don't say they slammed his head twice on the asphalt.

[01:06:44] Speaker 00:
They do not.

[01:06:45] Speaker 00:
However, the plaintiff's medical expert says that the way that you would get the kind of size of the head gash that he got in one of the couple ways that he could get all these broken ribs were by being slammed to the ground.

[01:07:00] Speaker 00:
And if you look at the spot where the blood is all over the street, it's right next to the car.

[01:07:05] Speaker 00:
It's not where he ends up a little bit later on with the officers on top of him.

[01:07:10] Speaker 00:
So it's very consistent.

[01:07:12] Speaker 00:
It's strong circumstantial evidence that what happened there is that the officers, after they took him out of the car, just slammed his body down into the ground at a point where Mr. Kruger was outnumbered, where they could see his hands, they could see that he didn't have any weapons.

[01:07:29] Speaker 00:
Alright, let's go to the Taser.

[01:07:31] Speaker 00:
Alright, so the Taser, the district court doesn't say really much of anything about the Taser, except that there are disputes of material fact about how many times Mr. Cooper got tased, but he doesn't otherwise, and he suggests that that's the basis of a constitutional violation.

[01:07:50] Speaker 00:
The district court doesn't fully spell it out, and he doesn't revisit it later on when he's doing his clearly established law violation.

[01:07:57] Speaker 00:
But a jury could reasonably find that this is basically what happened.

[01:08:01] Speaker 00:
Mr. Kruger has just been slammed into the ground.

[01:08:04] Speaker 00:
He has broken a number of ribs.

[01:08:05] Speaker 00:
He's bleeding out of his head.

[01:08:06] Speaker 00:
Perhaps he has concussed.

[01:08:09] Speaker 00:
Or, who weighs 290 pounds, has climbed onto the back of Mr. Kruger, who weighs 156 pounds.

[01:08:16] Speaker 00:
And at that point in time,

[01:08:18] Speaker 00:
And Orr says that he's got two knees pinning him down, and they demand that Mr. Kruger produce his right arm, which is pinned under his body, which a jury could reasonably find he could not produce.

[01:08:31] Speaker 00:
And without giving him any warning, Orr proceeds to tase him.

[01:08:37] Speaker 00:
And he tases him in drive-stun mode, which is just intended to cause extreme pain, which also,

[01:08:44] Speaker 00:
make it impossible for him to comply with commands.

[01:08:47] Speaker 04:
Was there some confusion on the expert of whether what was recorded in terms of the voltage of the taser was actually applied to Mr. Kruger?

[01:09:03] Speaker 00:
Here's what the facts show.

[01:09:04] Speaker 00:
The expert made a mistake the first time that he testified.

[01:09:09] Speaker 00:
And he said there were seven applications shown in the TASER register, when in fact there were 10.

[01:09:13] Speaker 00:
And he corrected himself later on.

[01:09:17] Speaker 00:
But I don't think that this raises a significant issue because, or admits.

[01:09:21] Speaker 04:
Well, that's not what I'm asking.

[01:09:23] Speaker 04:
I'm asking about the voltage.

[01:09:25] Speaker 04:
I thought that counsel for the defendant said that plaintiff's own expert indicated that

[01:09:33] Speaker 04:
He was testifying from the report of the Taser use, but couldn't say whether, even though the Taser was being engaged, whether it was actually making contact with Mr. Krueger.

[01:09:47] Speaker 00:
Yes.

[01:09:48] Speaker 00:
All the expert is saying is the report itself just tells you how many times the Taser was used.

[01:09:55] Speaker 00:
It doesn't tell you how it's used.

[01:09:57] Speaker 00:
But we have a lot of other evidence.

[01:09:59] Speaker 04:
Oh, we have the video.

[01:10:01] Speaker 00:
We have the video.

[01:10:02] Speaker 00:
But even before the video, Or just admits that he tased him three times.

[01:10:05] Speaker 00:
So there's three tasings from Or, which actually matches exactly what the Taser Register shows.

[01:10:11] Speaker 00:
So then there's seven from Phillips.

[01:10:13] Speaker 00:
We can see at least four on the video itself.

[01:10:16] Speaker 00:
There are three in relatively quick succession when Or is holding Mr. Kruger down, and Phillips tases him three times in a row, the last time in the groin,

[01:10:27] Speaker 00:
And then there is a little bit of time during that tasing when he continues to depress the taser when it's not on his body.

[01:10:33] Speaker 00:
But that taser application began on his body.

[01:10:37] Speaker 00:
There's a fourth time later on that you can tell if the taser is being used on his body.

[01:10:42] Speaker 00:
So there are three missing taser applications.

[01:10:45] Speaker 00:
And there's no reason to think that those didn't.

[01:10:47] Speaker 00:
So there's seven that we know for sure involve his body.

[01:10:51] Speaker 00:
There are no other times where the taser goes off on the video, because you can hear the sound, where it's not connected to his body.

[01:10:59] Speaker 00:
So the video shows no taser usage not connected to his body that didn't at least begin his body.

[01:11:05] Speaker 00:
So there are three missing ones of Phillips.

[01:11:07] Speaker 00:
And I think a jury could have reasonably found he tased him three times right before the body cam video starts.

[01:11:13] Speaker 00:
And this is corroborated by the fact that when the body cam video starts, Mr. Krueger is defending himself from Phillips waving a taser at him.

[01:11:21] Speaker 00:
So he's clearly, I think, just tased him since we have those three missing times.

[01:11:25] Speaker 03:
But regardless.

[01:11:26] Speaker 03:
That's a fact question is what you're saying.

[01:11:27] Speaker 00:
That's a fact question.

[01:11:28] Speaker 00:
Whether it's seven.

[01:11:29] Speaker 03:
So there's evidence.

[01:11:30] Speaker 03:
I want to be sure I'm understanding what you're saying, because I thought what

[01:11:35] Speaker 03:
Council for Defense was saying was that the expert said there was no evidence of contacts, but what she was saying was the report itself doesn't.

[01:11:46] Speaker 03:
That's what you're representing that she was saying.

[01:11:48] Speaker 03:
The report itself doesn't verify the contacts, but we can look at the video and see that there were at least seven contacts and that each time there was a taser used, there was contact in the video.

[01:12:00] Speaker 00:
Yes.

[01:12:00] Speaker 03:
Is that correct?

[01:12:01] Speaker 00:
Well, or there's three that Or did that are off video, but Or just says that he tased him.

[01:12:05] Speaker 03:
Three that you say are a fact question because... Well, Or admits that he tased him three times off video.

[01:12:12] Speaker 03:
Oh, he does.

[01:12:12] Speaker 00:
Okay, okay.

[01:12:13] Speaker 00:
And you can see Phillips do it four times on video.

[01:12:15] Speaker 00:
So there's just this question of three missing ones with Phillips, where I think a jury could reasonably conclude that he tased him three additional times.

[01:12:21] Speaker 00:
But I don't think that, like, a whole lot turns on this.

[01:12:24] Speaker 00:
They tased him seven times, they tased him ten times.

[01:12:27] Speaker 00:
Either way, they've already smashed his body.

[01:12:29] Speaker 00:
the man is already en route to die.

[01:12:32] Speaker 00:
And then they just proceed to tase him over and over and over again because he can't produce his hands because a 290 pound man is lying on top of his back.

[01:12:43] Speaker 00:
Like he's not warned, this is totally disproportionate to the situation.

[01:12:47] Speaker 00:
It's not tailored towards any sort of reasonable police end.

[01:12:52] Speaker 00:
And I think that this court's case law makes clear that that violates clearly established law.

[01:12:58] Speaker 00:
So we've got the tasing, we've got the head slam, we've got the pressure on the back, we've got the hogtie, and we've got all of the defendants seeing all of these things and failing to intervene.

[01:13:10] Speaker 00:
So there are layer after layer of reasons to affirm the judgment of the district court, and we would urge this court to do so.

[01:13:19] Speaker 00:
Thank you.

[01:13:22] Speaker 01:
I think all the time of the... I think the appellants had already exhausted all their time.

[01:13:29] Speaker 01:
Thank you, Council.

[01:13:30] Speaker 01:
The case is submitted and the Council are excused.