[00:00:00] Speaker 02:
All right, we will continue with our next case, which is Root versus Comstock, number 251123.

[00:00:10] Speaker 02:
Counsel, Mr. Daniels, you may proceed.

[00:00:13] Speaker 00:
Good morning, Your Honor.

[00:00:14] Speaker 00:
I would like to reserve at least three minutes of my time, if the court allows.

[00:00:19] Speaker 00:
Your Honor, we represent, I represent Mr. Root, the appellant in this matter, where Mr. Root was an unarmed individual, did not pose a threat,

[00:00:30] Speaker 00:
serious fiscal harm to the officer or the public who was in an elevated position at the time was tased by Officer Comstock, the appellee here.

[00:00:44] Speaker 00:
We appeal in the district court because we believe that the district court short-circuited the plaintiff's complaint at the motion to dismiss stage by embedding facts and deviating from the standard of review at a motion to dismiss stage.

[00:00:58] Speaker 00:
But one of the things I really want to focus on is the issue of the qualified immunity, the issue of clearly established at the time when Officer Comstock deploys Taser towards Mr. Root.

[00:01:11] Speaker 00:
Your Honor, this court is aware that when we look at qualified immunity, the law has to be clearly established at the time and a constitutional violation.

[00:01:21] Speaker 00:
However, this court not only look for cases within the Supreme Court, this circuit, but also look at weight authority outside of this court.

[00:01:31] Speaker 00:
And it is our position that at the time Officer Comstock deploys Taser and Mr. Root, leaving Mr. Root a complete quadriplegic

[00:01:40] Speaker 00:
is that it was not only established, it was well and clearly established that an officer should not deploy a taser on the person that's in an elevated position that doesn't call, that's not posing a threat of fiscal harm to the officer or the public.

[00:01:59] Speaker 00:
That's exactly what happened here.

[00:02:01] Speaker 00:
This case also deals with the issue, particularly when we're looking at the Graham factors.

[00:02:08] Speaker 00:
And I think the most important thing we look at the ground fact is we conceded the first and third factor that Mr. Root had in fact was suspected of committing a felony theft.

[00:02:19] Speaker 00:
vehicle theft, and he was fleeing at the time.

[00:02:23] Speaker 00:
But the most important factor that we look at, was he a threat to the officer's safety, serious threat to the officer's safety of the public?

[00:02:30] Speaker 00:
Because we believe not only does Taser categorize as a non-lethal force, if it's used in a manner in which it was used

[00:02:40] Speaker 00:
In this case, it is determined to be lethal force, deadly force, and this circuit have already determined what is conceivably deadly force.

[00:02:48] Speaker 00:
Deadly force is force that carries with it substantial risk of serious injury or death.

[00:02:55] Speaker 00:
and tasing a person in an elevated position absolutely carries that potential risk.

[00:03:00] Speaker 00:
And Officer Comstock was placed on notice, not just the robust case law that's outside of this circuit.

[00:03:07] Speaker 00:
We can get to that point.

[00:03:08] Speaker 00:
But not only that, he was placed on notice of his own departmental policies.

[00:03:12] Speaker 00:
where it specifically says forbids tasing a person.

[00:03:16] Speaker 00:
The officer shall not tase a person in an elevated position or on a surface that might cause injury or death.

[00:03:23] Speaker 00:
Now, in that general order, it talks about exodus.

[00:03:27] Speaker 00:
And I think that exodus makes way when it is a circumstances where even though that person may be on the elevated surface,

[00:03:34] Speaker 00:
or that it's cases where officers should be able to use force, even if that force constitutes as deadly force.

[00:03:43] Speaker 00:
It's a case that the district court cited, and I kind of want to point to it, and the district court cited Wilson versus Lafayette case, where an individual who was suspected of committing a felony or fled from the officers.

[00:03:57] Speaker 00:
And in that case, the officer used his taser, and it was a beta assay that he used his taser

[00:04:06] Speaker 00:
at the time, he didn't really parse out the issue per se with the taser, but more so with the objective of reasonableness.

[00:04:16] Speaker 00:
And in that case, and the district court kind of relied on that case and decided in this case, it's factually different.

[00:04:21] Speaker 00:
The deceit in that case actually reached for a weapon, a potential weapon in his pocket and looked at officers.

[00:04:28] Speaker 00:
In this case, you have Mr. Root, who is running from law enforcement, away from law enforcement.

[00:04:33] Speaker 00:
He has a half a gallon of milk in his hand.

[00:04:36] Speaker 00:
He's clearly on a elevated surface, and Officer Comstock with no risk to Officer Comstock, in addition, court pointed to that it could have been a safety issue because he was running towards the street.

[00:04:49] Speaker 00:
However, the issue is that we're talking about deadly force being used on a potential safety issue, a distant

[00:04:57] Speaker 00:
hypothetical here.

[00:04:59] Speaker 00:
We're not talking about a situation where you see, without a doubt, you see a serious risk, danger to the public at large or law enforcement.

[00:05:08] Speaker 00:
And I think that's a bad policy where we give officers the right to shoot and tell them how to shoot a person as well as if you're using a change in an elevated position, it's kind of a distinction

[00:05:20] Speaker 00:
A difference without distinction, per se, with the tool that's being utilized.

[00:05:25] Speaker 00:
And I think that's 1 of the issues.

[00:05:27] Speaker 00:
Well, where the district court with a quarter appeals and 11 circuit.

[00:05:31] Speaker 00:
When they decide is issued in Bradley versus bit.

[00:05:34] Speaker 00:
A 2021 case that predates this case to happen in 2022.

[00:05:39] Speaker 00:
where they went through the analysis and it wasn't a place that wasn't, it wasn't, no case was directly on point in 11th Circuit with this issue.

[00:05:48] Speaker 00:
There was no binding authority oppressing it in the Supreme Court, but they went to Tennessee Gardner and they equate that shooting a person in an elevated position, tantamount to deadly force.

[00:06:00] Speaker 00:
And as we know in Tennessee Gardner that you could not,

[00:06:05] Speaker 00:
use deadly force on a person that's fleeing, regardless of the fact that they're a felony, it does not pose a danger to the officers or the public.

[00:06:14] Speaker 00:
That's well clearly established out of Supreme Court.

[00:06:17] Speaker 00:
And this court has actually affirmed that issue recently.

[00:06:21] Speaker 00:
There's a couple of weeks ago, and I think Fuqua versus Santa Fe, where that a person, and they determined that a person that's fleeing is unarmed, that causes a risk to the officer's safety,

[00:06:33] Speaker 00:
or others, a deadly force cannot be employed.

[00:06:36] Speaker 00:
And I think the issue with Judge DeMonaco is that the taser component of itself, the lethal, less than lethal, and as to whether a taser can be considered a deadly force, a tool that can consider deadly force.

[00:06:54] Speaker 00:
This court have decided that already that tasers

[00:06:57] Speaker 00:
police tools can be considered deadly force that they use in a certain manner.

[00:07:02] Speaker 00:
For example, aspartones.

[00:07:05] Speaker 00:
If you strike a person in the head, then that can be considered, obviously, deadly force.

[00:07:11] Speaker 00:
It can result in death.

[00:07:12] Speaker 00:
Even handcuffs, even restraints, that's not even geared to be used in any manner.

[00:07:16] Speaker 00:
If you use it as a brass knuckles and strike a person multiple times, it can be considered deadly force.

[00:07:23] Speaker 00:
So I think the issue was a taser use.

[00:07:27] Speaker 00:
Uh, particularly versus a firearm.

[00:07:30] Speaker 00:
And I think there's no, there's a difference without distinction where you're talking about the placing of whether individual or the position of one of the position that a person's it is in is in, um, no council.

[00:07:42] Speaker 02:
Could I just ask you, you, you, uh, uh, uh, early on, uh, talked about clearly established law and, um, and now we're talking about whether tasering, uh,

[00:07:56] Speaker 02:
is deadly force.

[00:07:58] Speaker 02:
Is there a 10th Circuit case holding that use of a taser is deadly force?

[00:08:04] Speaker 00:
That is not a 10th Circuit case, particularly saying a taser itself is use of a deadly force, but it is a 10th Circuit case that talks about what constitutes as deadly force, anything that causes substantial risk and death.

[00:08:19] Speaker 00:
In that case, Your Honor, this case is

[00:08:27] Speaker 00:
is writer versus city of topeka kansas and it says deadly force that the actor used with the purpose of causing that he knows to create a substantial risk or death or serious bodily harm constitutes as deadly force and you know there's our argument that using the taser in that position of mr root was in would constitute

[00:08:47] Speaker 00:
as deadly force.

[00:08:48] Speaker 00:
That is exactly what the 11th Circuit determined, as well as the 3rd Circuit and parades of Benitez versus Smith.

[00:08:55] Speaker 00:
Although in that case, it was not necessarily dealing with a taser per se, it was dealing with an individual who was struck multiple times that caused paralyzing effect, as a taser would and resulted in a fall.

[00:09:07] Speaker 00:
But within that case, that case goes through a

[00:09:09] Speaker 00:
of cases, particularly dealing with tasers, use of tasers as such.

[00:09:14] Speaker 00:
And I think one of the biggest things that the way the authority that I'm talking about is outside of this circuit is that we're in that Parrazo Benitez Smith case, the 2021 case, and it's quoted, it is widely known among law enforcement.

[00:09:29] Speaker 00:
that tasers should not be employed against a suspect on an elevated surface because of a serious injury resulting in fall.

[00:09:37] Speaker 00:
And this course is aware that a person struck with a taser probes is a neuromuscular shutdown.

[00:09:47] Speaker 02:
Back to clearly established law, to meet your burden to show that the law was clearly established,

[00:09:58] Speaker 02:
Do you need to rely on out-of-circuit cases to meet that burden?

[00:10:04] Speaker 00:
No, Your Honor.

[00:10:04] Speaker 00:
Actually, I think that in this situation, the case, it was so egregious and so well-known by law enforcement, the conduct of Officer Comstock, that you don't even necessarily need a case.

[00:10:14] Speaker 00:
Obviously, a fact by faith.

[00:10:16] Speaker 02:
OK.

[00:10:18] Speaker 02:
So you're relying on the obviousness argument for clearly established law?

[00:10:27] Speaker 00:
Yes, that's one of the reliance that we have.

[00:10:30] Speaker 02:
If you had to rely on a case or cases for clearly established law, what are your best ones?

[00:10:39] Speaker 00:
I think that the best one is Brantley v. Benton is the best case out of the 11th Circuit, particularly the weight authority of that circuit where the courts determined that the height

[00:10:52] Speaker 00:
doesn't matter, because as well known one law enforcement, a Taser person that's in an elevated position carries a risk or a serious injury or death.

[00:11:02] Speaker 00:
In fact, the expert or Taser instructor determined that in the depositions that's within that case.

[00:11:10] Speaker 00:
And Your Honor, I know it's not a necessary part of it.

[00:11:12] Speaker 00:
How elevated?

[00:11:13] Speaker 02:
I mean, your complaint alleges that Mr. Root was running down an elevated slope.

[00:11:23] Speaker 02:
Can we tell from the complaint whether it was a gentle slope, a steep slope?

[00:11:29] Speaker 02:
What is meant by elevated?

[00:11:31] Speaker 00:
You know, I think obviously the video was not attached, but however, this slope was significant in this case.

[00:11:40] Speaker 00:
Obviously, that's a matter that we would get through.

[00:11:42] Speaker 00:
How do we know that from the complaint?

[00:11:45] Speaker 00:
Well, we don't necessarily know that from the complaint.

[00:11:48] Speaker 00:
I think that is a kind of heightened standard that would be placed on the complaint at that stage.

[00:11:54] Speaker 00:
The fact that the complaint with itself says elevated, obviously construing facts most like favorites of the

[00:12:00] Speaker 00:
to the complaint, then the courts would have to show up that this is an elevated position, albeit it may not.

[00:12:07] Speaker 01:
What does that, I mean, what does that, if we view it in a light most favorable to you, I mean, what does that mean?

[00:12:15] Speaker 01:
We have to assume it's four feet, assume it's a significant drop-off where, you know, somebody if tased would be likely to break their neck or do something like that.

[00:12:27] Speaker 01:
I mean, how do we view

[00:12:31] Speaker 01:
basically a vague fact in a light most favorable to you.

[00:12:36] Speaker 01:
I mean, how much running room do we have to give you?

[00:12:40] Speaker 00:
I think that the plaintiff should be given an inference in favor as to the elevation.

[00:12:46] Speaker 00:
And I think that the main purpose here and the point is that the elevation as relates to tasing a person in an elevated position, even within the Department of Policy, Office of Cumstock, there's no definitively or dimension as to what is determined

[00:13:01] Speaker 00:
elevated.

[00:13:02] Speaker 00:
A person could be standing in a chair, and it may be three feet off the ground, and that would be considered elevated.

[00:13:08] Speaker 00:
That would result, that could result in serious injured death of a person of this taste.

[00:13:14] Speaker 00:
That's why the standard alone

[00:13:16] Speaker 01:
uh within law enforcement that you do not tase a person elevated position uh this this is sort of like a almost like a small hill you're talking about right this it's not a a steep drop off or standing on a chair or standing on a wall or standing on a ladder it's a it's it's more of a

[00:13:37] Speaker 01:
small hill going up to the gas station.

[00:13:39] Speaker 00:
Is that right?

[00:13:40] Speaker 00:
No, Your Honor.

[00:13:43] Speaker 00:
It's not as very steep per se, but it's not just a small hill.

[00:13:48] Speaker 00:
If you're going up to the gas station, it's a clear elevation from the gas station to the street on Airport Way here.

[00:13:55] Speaker 00:
And I believe if we move forth in discovery, we'll be able to show that

[00:14:00] Speaker 00:
particularly, and even with experts to show the dimension of that, and the fact that Mr. Root was tased at the top of that peak of that elevation.

[00:14:11] Speaker 00:
He was not tased going further down the slope of the hill or elevation, you would call it.

[00:14:16] Speaker 00:
He was tased at the peak of the elevation, essentially flew down that elevated slope

[00:14:22] Speaker 00:
breaking it cause his neck to strike against the curve breaking it and rendering him to quadriplegic.

[00:14:27] Speaker 00:
So this is not just a foot a small heel.

[00:14:30] Speaker 00:
We're talking about is more than that.

[00:14:33] Speaker 01:
The honor this brings us back to the to the original point.

[00:14:37] Speaker 01:
I think is that we can't tell any of this from the complaint.

[00:14:41] Speaker 00:
Well, I think that the inference is drawn in favor of the non-moving party, in which we give a favorable inference here as such.

[00:14:51] Speaker 00:
And I think that that's the issue where courts intervene as to whether saying, you know, the hill or the elevation itself wouldn't result in

[00:14:59] Speaker 00:
Serious injured deaf, which a judge to Monaco did so somehow judge to Monaco Took out from the complaint that the heel or the elevation wouldn't wouldn't cause a serious injury deafness within a footnote I believe in the in the in the judge's order.

[00:15:16] Speaker 00:
So that's the issue.

[00:15:17] Speaker 00:
The court should not be short-circuiting complaints at this stage and

[00:15:21] Speaker 00:
where more information may be needed.

[00:15:23] Speaker 00:
The question is, plausibility.

[00:15:25] Speaker 00:
Did we get across that finish line, that threshold on the equal ball in Twombly 2, as to whether plausibility that we stated a claim, which relief can be granted, particularly if we're talking about the elevation element within this case.

[00:15:39] Speaker 00:
Your Honor, I would like to also point, not just to the qualified immunity issue, that Judge Domenico embedded facts from his claim to fit his analysis.

[00:15:50] Speaker 00:
for example, stating that that Mr Root called was a danger to the officers due to the fact a prior incident where he fled and inadvertently struck one of the police officers cars and trying to flee in which a tracker was placed on him and the in the in the in the defendant complaint that Mr Root was running towards this busy street that would heighten the officers to use some sort of force towards him before he reached the street.

[00:16:16] Speaker 00:
You know that is not the

[00:16:17] Speaker 00:
That is not standard here as when they deal with the motion this next stage.

[00:16:22] Speaker 00:
And if we look at, we point to Barnes versus Felix, reached Supreme Court case.

[00:16:28] Speaker 00:
When you're talking about use of force on the Fourth Amendment, you need to look at the totality of the circumstances.

[00:16:33] Speaker 00:
The totality of the circumstances here, previously they encountered Mr. Root.

[00:16:37] Speaker 00:
He fled, track was placed, and when they found him and encountered him again, he was at the gas station with a gallon of milk in his hand, half a gallon of milk in his hand running.

[00:16:47] Speaker 00:
He was no longer in possession of any vehicle or anything.

[00:16:51] Speaker 02:
Okay, counsel, you're over time now.

[00:16:54] Speaker 02:
Why don't you go ahead and sum up and we'll turn to Mr. Stewart.

[00:16:59] Speaker 00:
All right.

[00:16:59] Speaker 00:
And the last thing, let's point to the dismissal of the Monell claims.

[00:17:05] Speaker 00:
Those claims are brought for ratification that the succeed of Colorado Springs ratifies officer's behavior.

[00:17:10] Speaker 00:
I believe we met the rule eight standard, shattered rule eight standard to show that those, that customs and policies created a pattern within the seat of Colorado Springs to

[00:17:19] Speaker 00:
to believe that, but give Mr. Root, Officer Comstock, that he contains a person against his department of policies and gives Wells a known practicing within law enforcement.

[00:17:30] Speaker 00:
And we ask this court to consider that as well.

[00:17:33] Speaker 02:
Thank you, counsel.

[00:17:35] Speaker 03:
Mr. Stewart.

[00:17:37] Speaker 03:
Good morning, Your Honors, and may it please the court, Brian Stewart for Officer Comstock and the City of Colorado Springs.

[00:17:46] Speaker 03:
Yeah, this case is about a reasonable split second decision to stop a fleeing felony suspect.

[00:17:52] Speaker 03:
On May 16th, 2022, Officer Comstock used his taser once to stop Mr. Root from running headlong into airport road.

[00:18:01] Speaker 03:
Officer Comstock deployed his taser only after Mr. Root had evaded and resisted every other less forceful arrest attempt.

[00:18:09] Speaker 03:
Because Officer Comstock's decision was inherently reasonable under the circumstances that confronted him, Judge Domenico correctly determined that he was entitled to qualified immunity.

[00:18:19] Speaker 03:
Officer Comstock is also entitled to qualified immunity because there is no clearly established law that instructs him not to use his taser in this situation.

[00:18:28] Speaker 03:
Mr. Root has not pointed to any case where this court has warned an officer not to tase a fleeing felony suspect simply because that person is running over some sort of undefined gradient.

[00:18:40] Speaker 03:
There's also no holding from this court that defines or even discusses the term elevated surface in a Fourth Amendment context.

[00:18:48] Speaker 03:
And the amending complaint does not contain sufficient facts to plausibly show that a reasonable officer would have viewed the ground that Mr. Root was on as ground being likely to cause a serious bodily injury when mixed with a taser.

[00:19:00] Speaker 03:
As such, Mr. Root has not met his burden under the qualified immunity doctrine and is not satisfied either prong.

[00:19:07] Speaker 03:
I'd like to go back to or start with the 1st, prong of analysis.

[00:19:12] Speaker 03:
The district court correctly applied the 3 non exclusive factors.

[00:19:17] Speaker 03:
That are ubiquitous to every excessive force case.

[00:19:20] Speaker 03:
And all 3 in this case way and officer comp stocks favor.

[00:19:24] Speaker 03:
As Mr. Daniels acknowledged during his presentation.

[00:19:27] Speaker 03:
They admit the first and the third factors.

[00:19:31] Speaker 03:
The only issue really here is the second factor.

[00:19:33] Speaker 03:
And that is, would a reasonable officer view Mr. Root as a threat to the safety of others when Officer Comstock deployed his taser?

[00:19:42] Speaker 02:
Council, this is a threshold procedural matter.

[00:19:47] Speaker 02:
Did the opening brief actually address the Graham factors?

[00:19:52] Speaker 03:
Did our opening brief or Mr. Root's opening brief, sir?

[00:19:55] Speaker 03:
Mr. Root's opening brief.

[00:19:56] Speaker 03:
I don't believe his opening brief discussed the Graham factors.

[00:20:00] Speaker 03:
I may have mentioned them, but I don't recall an in-depth analysis of them.

[00:20:04] Speaker 02:
Would it be fair to say though, that because you addressed them, that you've waived any waiver of that argument?

[00:20:13] Speaker 03:
Well, I suppose so, your honor.

[00:20:16] Speaker 03:
I mean, I think that's the test that this court applies.

[00:20:21] Speaker 03:
Did I answer your question, sir?

[00:20:23] Speaker 02:
Well, you didn't say anything about waiver, and you went ahead and addressed the factors.

[00:20:29] Speaker 02:
So I guess my question is whether the Graham factors are in play here.

[00:20:35] Speaker 03:
I think they are.

[00:20:35] Speaker 03:
I think they're in play in every excessive force case.

[00:20:40] Speaker 03:
But I will defer to the court.

[00:20:41] Speaker 03:
If the court views otherwise, I certainly not contest you.

[00:20:46] Speaker 02:
Well, no, I'm asking if you waived the waiver.

[00:20:49] Speaker 02:
And what I'm hearing is that maybe you did.

[00:20:54] Speaker 03:
I didn't realize it was something that, to be honest, there could be.

[00:20:59] Speaker 03:
It seems to me that those factors were applying in excessive force case, and this is an excessive force case.

[00:21:05] Speaker 02:
Okay.

[00:21:06] Speaker 02:
I don't want to belabor the point.

[00:21:08] Speaker 02:
Why isn't Mr. Root entitled to a reasonable inference that running down a slope made him vulnerable, more vulnerable to serious injury from a taser?

[00:21:21] Speaker 03:
So what Mr. Root is doing is he's asking this court to view Officer Comstock's decision to use a taser as a decision to use deadly force.

[00:21:32] Speaker 03:
And what he's done is he's used this label of an elevated surface as a springboard for that analysis.

[00:21:42] Speaker 03:
But if we look at the definition of deadly force, deadly force, and I'm quoting Jiren V. City Lakewood,

[00:21:52] Speaker 03:
Deadly force is force that an actor uses with the purpose of causing or that he knows to create a substantial risk of causing death or serious bodily injury.

[00:22:04] Speaker 03:
And so we have to look at what Officer Comstock knew at the time and really what he

[00:22:11] Speaker 03:
He intended and there are no facts in the amended complaint that would suggest he intended this to happen or that he knew that the mystery would suffer this this kind of injury.

[00:22:21] Speaker 02:
Well, I think you've gone beyond the question.

[00:22:24] Speaker 02:
My question was simply whether by alleging the elevated position.

[00:22:35] Speaker 02:
or the elevated slope, I guess that's the phrase used in the complaint.

[00:22:40] Speaker 02:
Why doesn't Mr. Root get an inference that using a taser in such a circumstance poses a more serious and dangerous risk of serious bodily injury?

[00:22:59] Speaker 03:
I think running down a slope might

[00:23:04] Speaker 03:
Impose some additional risk as opposed to a person running on, on level ground, but that doesn't make officer Comstock's decision in this case unreasonable.

[00:23:16] Speaker 03:
We have to remember that officer Comstock, when he tased Mr. Root, he had a good reason to suspect Mr. Root of not just stealing that 2017 Ford Fusion, but also of using that car to crash into a police car at the Aspen Lodge.

[00:23:33] Speaker 03:
And then when officers

[00:23:34] Speaker 03:
caught up with Mr. Root at the Come and Go gas station, he again took flight and ran directly towards Airport Road.

[00:23:42] Speaker 03:
This is a public road.

[00:23:44] Speaker 03:
It's open to vehicular traffic and running towards a public road and running into a public road is a very dangerous thing to do.

[00:23:54] Speaker 02:
Well, but wasn't there a little more to the context at that point?

[00:24:02] Speaker 02:
The allegation is that, and I think we have to accept that the factual allegations is true, that he was unarmed and was fleeing.

[00:24:16] Speaker 02:
And so why didn't that make the tasering unreasonable?

[00:24:22] Speaker 02:
I understand your argument about the earlier parts of the incident, hitting the car, fleeing and so forth.

[00:24:32] Speaker 02:
and the bolo wrap, but once we get to the point of tasing, don't we just have the suspect who is fleeing unarmed and on a downward slope?

[00:24:47] Speaker 02:
And if that's what we have, why isn't tasing unreasonable under those circumstances?

[00:24:53] Speaker 02:
I mean, does he really pose any threat?

[00:24:56] Speaker 03:
So he imposes a there's an enormous threat there and it's not just to officer Comstock, but it's to how is he first?

[00:25:04] Speaker 02:
How's he a threat to officer Comstock if he's unarmed and fleeing?

[00:25:08] Speaker 03:
So I don't think we can presume that he is unarmed in this situation.

[00:25:13] Speaker 02:
Why not?

[00:25:14] Speaker 02:
I mean, I don't don't we take the allegations that the complaint is true.

[00:25:19] Speaker 03:
So I apologize, sir.

[00:25:21] Speaker 03:
Let me let me rephrase.

[00:25:22] Speaker 03:
I don't think we can presume that it would have been reasonable for officer Comstock

[00:25:26] Speaker 03:
to believe that he was unarmed in this situation.

[00:25:29] Speaker 03:
And remember, as Graham tells us, we view

[00:25:34] Speaker 03:
incidents from the perspective of a reasonable police officer on the scene as the situation is happening.

[00:25:42] Speaker 03:
I know the court mentioned the hitting of the police car at the Aspen Lodge, but that's very relevant, even to whether or not Mr. Root is armed or not, because that shows a degree of recklessness and a degree of dangerousness.

[00:26:03] Speaker 03:
And presumably, I mean, a car is a significant, significant weapon.

[00:26:07] Speaker 03:
Mr. Root has already used that against police officers.

[00:26:11] Speaker 03:
But there's, there's, I mean, these are two serious felony crimes and there would be no reason for Officer Comstock just to presume that Mr. Root was, was unarmed.

[00:26:21] Speaker 03:
And he's, and he's running headlong towards a, towards a public road.

[00:26:25] Speaker 03:
And he's putting himself, he's putting Officer Comstock, if Officer Comstock chooses to follow him into that road and he's putting every innocent driver

[00:26:32] Speaker 03:
traversing that road, that may be on that road at that time, in danger.

[00:26:36] Speaker 03:
And any passengers in those cars or any other?

[00:26:38] Speaker 02:
What do we know?

[00:26:39] Speaker 02:
Just, I mean, we're at, again, we're at the pleading stage.

[00:26:42] Speaker 02:
All we should be looking at is the complaint, correct?

[00:26:47] Speaker 02:
So what do we know about this road?

[00:26:50] Speaker 02:
I mean, does the complaint provide that information that this is a busy road?

[00:26:58] Speaker 03:
The complaint just says he's running towards

[00:27:01] Speaker 02:
airport roads or, but what does that tell us?

[00:27:08] Speaker 02:
How, how, how, how do we get from there to it, to, uh, it being a busy road and that he's running towards it and that, that, that, uh, that's dangerous.

[00:27:18] Speaker 02:
Somehow that's dangerous.

[00:27:19] Speaker 03:
I would submit that running towards any public road is an inherently dangerous thing to do.

[00:27:25] Speaker 03:
And it doesn't matter if that road is I-25 or if it's airport road or if it's

[00:27:29] Speaker 03:
A quiet residential street.

[00:27:31] Speaker 03:
In fact, the court in Singleton v. Cunningham.

[00:27:34] Speaker 03:
This is a case not in this district, but it did consider there were claims in that case where the suspect that was his argument that he said that was so if if if someone is crossing a quiet.

[00:27:50] Speaker 02:
Residential street.

[00:27:54] Speaker 02:
And the police are pursuing that person.

[00:27:57] Speaker 02:
It's reasonable to taste that person.

[00:28:00] Speaker 03:
Is that person is running headlong towards a public road?

[00:28:03] Speaker 03:
Yes, sir.

[00:28:03] Speaker 03:
I would say, I would say so we approach all public roads with caution because it only takes one car and.

[00:28:10] Speaker 03:
Yeah, we don't any car could be on even even a quiet street at any time.

[00:28:17] Speaker 03:
That's why you stop and you look both ways.

[00:28:26] Speaker 03:
And in this particular case, Officer Comstock tased Mr. Root before he was able to get all the way into that road.

[00:28:34] Speaker 02:
That doesn't the police department, the Colorado Springs Department of Policy call for a warning before tasering?

[00:28:42] Speaker 03:
So the policy says that a, let me see if I have it right here.

[00:28:52] Speaker 03:
My reflection is that it says,

[00:28:58] Speaker 03:
That a warning should be giving if if I believe it says if reasonable, but Mr. Root was given several warnings in this particular case.

[00:29:08] Speaker 03:
He was given a warning officers tried to surround that car and use absolutely no physical force to take the driver and into custody at the Aspen Lodge.

[00:29:18] Speaker 03:
And force is used against them.

[00:29:20] Speaker 03:
Uh, they tried again at the coming.

[00:29:22] Speaker 02:
Let me just ask you, did officer Comstock violate department policy when he didn't say stop or I'll tase you.

[00:29:30] Speaker 03:
No, sir.

[00:29:30] Speaker 03:
There's not, the policy does not require a taser specific warning.

[00:29:34] Speaker 03:
It's just a warning, uh, or a chance to comply with, with orders.

[00:29:38] Speaker 03:
And Mr. Root was given several opportunities to comply with police officers.

[00:29:43] Speaker 02:
So there's no requirement to warn before they pay somebody.

[00:29:48] Speaker 03:
No, sir and not not also not in and well, there's no requirement that they give a taser specific warning.

[00:29:54] Speaker 03:
The requirement is that they give the person a chance to comply with police officers to before additional force is used if if reasonable possible.

[00:30:08] Speaker 03:
And you know, I'll point this the court to the case of Thompson V Salt Lake and there this court held that.

[00:30:19] Speaker 03:
that it wasn't necessary for officers to give a warning before releasing a police talk.

[00:30:26] Speaker 03:
So I don't think there's a constitutional, Mr. Root doesn't have a constitutional right to a Taser specific warning in this case.

[00:30:36] Speaker 03:
I mean, the facts of the matter are is that, you know, Officer Comstock's decision in this case was inherently reasonable and Judge Domenico correctly determined that he did not violate

[00:30:49] Speaker 03:
Mr. Root's constitutional rights, but officer Comstock also did not violate a clearly established law.

[00:30:59] Speaker 03:
Mr. Root has not pointed to a single case where this court has said that an officer violates the fourth amendment by using a taser to stop a fleeing felony suspect who has already evaded less forceful arrest attempts.

[00:31:13] Speaker 03:
A felony suspect who has already used force against officers.

[00:31:17] Speaker 03:
a felony suspect who is running directly towards a public road, quite possibly the most dangerous obstacle in that immediate area.

[00:31:25] Speaker 03:
There's no clearly established law where this circuit defines the term elevated surface in an excessive force setting.

[00:31:34] Speaker 03:
And Mr. Root has not pointed to any case, any published case from any circuit that has used that term in connection with a slope, or as Judge Carson put it, a small hill.

[00:31:47] Speaker 03:
And neither has this court, and as Mr. Daniels has acknowledged, this court has not viewed a taser as an instrument of deadly force under any set of circumstances.

[00:31:57] Speaker 03:
To simply put, Mr. Root has not pointed to alleged facts or law that would have made it clear to Officer Comstock that using his taser in this situation was illegal.

[00:32:09] Speaker 03:
And for that reason, all those reasons, Judge Domenico's

[00:32:15] Speaker 03:
Ruling was appropriate.

[00:32:17] Speaker 03:
I did want to point out Mr. Daniels mentioned Bradley v Benton and just wanted to kind of distinguish the facts of that case.

[00:32:26] Speaker 03:
My recollection of that case is that the person fleeing officers pulled over a police car for like a minor traffic infraction.

[00:32:33] Speaker 03:
and the passenger got out of that car and immediately took off.

[00:32:37] Speaker 03:
He wasn't suspected of committing a felony.

[00:32:39] Speaker 03:
He wasn't suspected of committing a misdemeanor.

[00:32:42] Speaker 03:
He wasn't really suspected of committing any crime.

[00:32:45] Speaker 03:
And then the officer tased him on top of an eight foot fence.

[00:32:49] Speaker 03:
And the court actually said that it was an eight foot fence.

[00:32:52] Speaker 03:
We don't have facts like this here.

[00:32:53] Speaker 03:
And I see that I'm out of time.

[00:32:54] Speaker 03:
So I would appreciate the court.

[00:32:57] Speaker 03:
Thank you for your attention.

[00:32:58] Speaker 03:
And we'd ask the court to affirm Judge Domenico's ruling.

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

[00:33:03] Speaker 02:
We're out of time for arguments for this case, so we will consider the case submitted.

[00:33:11] Speaker 02:
And counsel are excused, and thank you for your arguments this morning.