[00:00:00] Speaker 01:
The last case for today is 24-3153 Teets v. Steepin.

[00:00:05] Speaker 01:
May I proceed?

[00:00:06] Speaker 01:
Yes, thank you.

[00:00:17] Speaker 00:
I think it is still good morning, so good morning, Your Honors.

[00:00:19] Speaker 00:
May it please the Court?

[00:00:21] Speaker 00:
My name is Jeff Kuhlman.

[00:00:22] Speaker 00:
I appear on behalf of Jason Stepien, Britton Newby, Billy Buffner, Karen Conklin, and Penito Mendoza.

[00:00:29] Speaker 00:
We are here on my client's interlocutory appeal of the denial of qualified immunity on excessive force and failure to intervene claims that were brought against them.

[00:00:38] Speaker 00:
The qualified immunity was denied on summary judgment.

[00:00:41] Speaker 00:
This case arises out of a prone restraint that my clients applied to Cedric Lofton at the Juvenile Intake and Assessment Center, which is abbreviated as GIAC in the briefing in Sedgwick County, Kansas.

[00:00:54] Speaker 00:
As set forth in our brief, we believe that there are two exceptions that apply to this court's general standard of review of the facts on an interlocutory appeal of denial of qualified immunity.

[00:01:05] Speaker 00:
But I'll start by pointing out that I don't think the court needs to reach those issues in order to reverse the district court.

[00:01:10] Speaker 00:
Even if this court accepts the district court's facts as the district court found them, my clients are still entitled to qualified immunity because even under those facts, they did not violate a clearly established right.

[00:01:22] Speaker 01:
I need to understand what you're saying.

[00:01:24] Speaker 00:
Sure.

[00:01:25] Speaker 01:
You're saying that even if we accept that there were periods, long periods, as long as 12 minutes, where Mr. Lostin was not resisting, that you're still entitled to qualified immunity.

[00:01:41] Speaker 00:
I would not agree with that because that is not what the district court found.

[00:01:44] Speaker 01:
OK.

[00:01:44] Speaker 01:
So I need to understand exactly what you're telling me.

[00:01:48] Speaker 00:
Sure.

[00:01:48] Speaker 00:
Sure.

[00:01:48] Speaker 00:
The facts that are uncontroversial.

[00:01:51] Speaker 00:
In the district court's decision, the court does not find a dispute of fact as to the testimony about Mr. Lofton constantly resisting, constantly threatening them, constantly trying to break free from their holds.

[00:02:03] Speaker 00:
There's two dispute of facts.

[00:02:06] Speaker 00:
One is about weight on Mr. Lofton's back, which we're not challenging here.

[00:02:09] Speaker 00:
The other dispute of fact is about the level of control that the officers had over Mr. Lofton, which is different than the question of whether he's resisting.

[00:02:18] Speaker 00:
The facts that are found are,

[00:02:20] Speaker 00:
Mr. Lofton punches Mr. Stepien.

[00:02:24] Speaker 00:
Mr. Newby and Mr. Stepien try to get him to a holding room.

[00:02:27] Speaker 00:
With some difficulty, in that holding room, Mr. Lofton puts Mr. Newby in a chokehold.

[00:02:32] Speaker 00:
More officers are required to respond.

[00:02:33] Speaker 00:
They try to restrain Mr. Lofton in the seated position, unsuccessfully because he is fighting and resisting so hard.

[00:02:40] Speaker 00:
Again, all of this is uncontroverted.

[00:02:42] Speaker 00:
They take him to the prone position because they're unable to restrain him in the seated position.

[00:02:47] Speaker 00:
And while there, they're unable to handcuff him,

[00:02:50] Speaker 00:
Every time they try to release their holds, he tries to fight again, they have to reestablish their holds.

[00:02:56] Speaker 00:
The officers are all testified that there is never a point where they felt like the situation was under control and their reasonable perceptions matter.

[00:03:04] Speaker 00:
And Dr. Gurel, the independent medical expert, testified that... Council, those are all the arguments you made before the district court.

[00:03:11] Speaker 03:
But a moment ago, Judge McHugh asked you about the finding of fact the district court made about 12 minutes of no resistance that are shown in the video.

[00:03:19] Speaker 03:
And you said, well, I don't agree the district court made that finding.

[00:03:22] Speaker 03:
But on page 18 of Judge Malgren's order, he says, quote, they, they being the defendants, your clients do not know any resistance from time stamps.

[00:03:30] Speaker 03:
And he goes on to list them, which constitutes a 12 minute period.

[00:03:34] Speaker 03:
The district court did make that finding, didn't he?

[00:03:37] Speaker 00:
I would disagree with that characterization.

[00:03:39] Speaker 03:
I just read you the district court's order.

[00:03:41] Speaker 00:
So the defendants in their motion noted no visible resistance being shown on the video, which the court also said does not show Mr. Lofton, and the court said is inconclusive.

[00:03:52] Speaker 00:
And I can get to that argument as well.

[00:03:54] Speaker 01:
Well, the court said the jury could look at the video.

[00:03:57] Speaker 01:
We've all watched the video.

[00:03:59] Speaker 01:
And you can see into the room.

[00:04:02] Speaker 01:
And the court said that a reasonable jury looking at this based on the fact that the people sitting on him aren't moving,

[00:04:10] Speaker 01:
where earlier they were, they could make a reasonable factual finding that he wasn't resisting.

[00:04:18] Speaker 01:
And frankly, even if he wasn't resisting, that they certainly could have turned him on his side so he didn't die.

[00:04:26] Speaker 00:
And I think that last part is the factual dispute that the district court found.

[00:04:32] Speaker 00:
I've read the district court order so many times.

[00:04:33] Speaker 00:
I know this court has as well.

[00:04:35] Speaker 00:
The court never controversed Lofton's resistance or attempted resistance.

[00:04:39] Speaker 00:
At most, it's that it is unsuccessful in moving the officers who are sitting there trying to get this juvenile to stop fighting and stop resisting.

[00:04:48] Speaker 01:
The question, the narrow... So if we disagree with you and we think what the court found is that looking at the video, a reasonable jury could conclude there were long periods of time

[00:04:59] Speaker 01:
when the decedent was not resisting, then you lose?

[00:05:04] Speaker 01:
You concede?

[00:05:07] Speaker 00:
I want to make sure I understand that question.

[00:05:08] Speaker 00:
If the court accepts that the district court's decision was that there's a dispute of fact as to resistance during that period, then I would say yes, and I would ask the court to apply the exceptions because it was legal error for the court to make that factual finding.

[00:05:23] Speaker 03:
Let's talk about the exceptions.

[00:05:25] Speaker 03:
As you know, our jurisdiction is limited here, and we're not here to reweigh the facts that Judge Melgren found, unless the evidence displays a blatant contradiction.

[00:05:37] Speaker 03:
I read your brief to say, well, I mean, there are two exceptions.

[00:05:40] Speaker 03:
We're going to talk about the blatant contradiction first.

[00:05:43] Speaker 03:
But I read the brief to say, well, the video is inconclusive.

[00:05:47] Speaker 03:
Well, inconclusive is not the same thing as a blatant contradiction.

[00:05:50] Speaker 03:
So where does the fact that you say, well, it's inconclusive, what's your authority to say that that gives rise to the blatant contradiction exception?

[00:05:58] Speaker 00:
And that's why the briefs talk about the exceptions being intertwined, because you have to get to the legal error first before the blatant contradiction exception applies.

[00:06:06] Speaker 00:
There's conjecture, speculation, surmise.

[00:06:10] Speaker 00:
Those things cannot create a dispute of fact that's summary judgment standard.

[00:06:13] Speaker 00:
That's well established summary judgment law.

[00:06:16] Speaker 00:
And just because a video may corroborate a theory, if it doesn't controvert the defendant's statement of facts, it does not create a dispute of fact.

[00:06:26] Speaker 00:
And all the officers testified about Lofton that the whole time they're in there, they tried to let their hands up and he would try to get loose again.

[00:06:32] Speaker 01:
They also testified they didn't put any weight on him and yet he's got injuries that make it pretty clear that they put weight on him.

[00:06:42] Speaker 00:
I would disagree about the interpretation of that, but that is an argument for the jury and I totally recognize that.

[00:06:46] Speaker 00:
I don't need to get into the weight in the back.

[00:06:48] Speaker 00:
I'll concede that at this point.

[00:06:49] Speaker 01:
You have the officer saying, oh, he was resisting the whole time and we had to have all of us on top of him.

[00:06:58] Speaker 01:
But when you watch that video, there are periods of time when they're actively restraining him.

[00:07:04] Speaker 01:
There are other periods of time and they're long periods of time when they're just sitting there and sometimes people are coming in and out of the room.

[00:07:12] Speaker 01:
And I think a reasonable jury could look at that and say they didn't need all those people sitting on him for that entire time.

[00:07:21] Speaker 00:
I would push back on the characterization that anybody was sitting on him.

[00:07:25] Speaker 00:
Most of the officers are off to the side and one's down at his ankles.

[00:07:28] Speaker 00:
There's one person over the top of his back.

[00:07:30] Speaker 00:
Her testimony shouldn't put weight on him, but again.

[00:07:32] Speaker 01:
But there's also testimony that she did.

[00:07:34] Speaker 00:
Yes.

[00:07:36] Speaker 00:
So jury.

[00:07:38] Speaker 00:
I agree with that.

[00:07:41] Speaker 00:
And I'm sorry, I got a little bit off base there.

[00:07:42] Speaker 00:
What was the court's question?

[00:07:45] Speaker 01:
Well, I don't understand.

[00:07:48] Speaker 01:
how you can argue that this is an exception.

[00:07:52] Speaker 01:
I'm taking the same position that Judge Federico did, which this isn't blatantly contradictory.

[00:08:00] Speaker 00:
So I'll have to start with the legal error analysis, which is that.

[00:08:04] Speaker 01:
Okay, and that's Paul's?

[00:08:06] Speaker 00:
That's Paul's and that's Lehman and that's the other case aside from the other circuits where there's cases in which, you know, an officer testifies.

[00:08:14] Speaker 01:
And Paul's is a First Amendment case, right?

[00:08:16] Speaker 01:
Sure, sure.

[00:08:17] Speaker 01:
And it was a failure to consider individually each of the officers, right?

[00:08:24] Speaker 00:
Sure, yes.

[00:08:24] Speaker 00:
But the larger point of the exception is that legal error is legal error.

[00:08:28] Speaker 00:
I still think that if a

[00:08:30] Speaker 00:
Court found a dispute of fact on unsworn hearsay evidence, or just based on a plaintiff's allegations and not admissible testimony, everybody would agree, well, that's legal error, and that cannot create a dispute of fact.

[00:08:42] Speaker 00:
In the same way, nothing in the video controverts the testimony of my clients, and it does not controvert the testimony of the plaintiff's own medical expert and the individual medical expert who said,

[00:08:53] Speaker 01:
The expert talks about struggling, but they also talk about if you can't breathe, you're going to struggle.

[00:09:04] Speaker 01:
I mean, struggling might be because I can't breathe.

[00:09:10] Speaker 00:
First off, he did not die of positional fixation.

[00:09:12] Speaker 00:
He was speaking and fighting the whole time.

[00:09:14] Speaker 00:
That's also uncontroversial.

[00:09:15] Speaker 00:
He was speaking the whole time.

[00:09:17] Speaker 00:
So there's not actually any competent evidence that he could not breathe.

[00:09:20] Speaker 00:
In fact, he was saying he was threatening to kill my clients throughout the duration of the restraint.

[00:09:25] Speaker 00:
So there's evidence that he could breathe, obviously, if he was threatening them.

[00:09:28] Speaker 00:
And that's where the Casey and Freya cases are very distinguishable from this case on that struggling aspect is that

[00:09:36] Speaker 00:
Why was Mr. Hoffman put in the prone restraint?

[00:09:39] Speaker 00:
Because he violently attacked Mr. Stepien and then tried to put Mr. Newby in a chokehold.

[00:09:44] Speaker 00:
The reasonable perception of the officers is what matters here.

[00:09:47] Speaker 00:
And at the point where they, even if you accept that the struggling ceased to be resistance and started to be struggling, how in the world

[00:09:55] Speaker 00:
Are my clients supposed to reasonably perceive that?

[00:09:57] Speaker 00:
When he attacked them, they took him down.

[00:09:59] Speaker 00:
They all testified.

[00:10:00] Speaker 01:
Let me ask you this.

[00:10:02] Speaker 01:
During that time when they were in there, would it have been OK for one of the officers to pull out a gun and shoot him?

[00:10:08] Speaker 00:
No.

[00:10:08] Speaker 01:
OK, why not?

[00:10:10] Speaker 00:
Because he wasn't a grave threat of bodily harm to them.

[00:10:14] Speaker 01:
And that's deadly force, right?

[00:10:16] Speaker 00:
Right.

[00:10:16] Speaker 01:
Since George Floyd, we've known that prone restraint is deadly force.

[00:10:24] Speaker 01:
So once you're sitting on someone and you're doing a prone restraint for a long period of time, it's not much different than pulling out your gun and shooting them.

[00:10:36] Speaker 00:
I just have to disagree with that characterization.

[00:10:37] Speaker 00:
Some of us sleep in the prone position for eight hours a day.

[00:10:40] Speaker 01:
But no one's sitting on your back.

[00:10:42] Speaker 00:
And you're not constantly fighting and resisting against people while you're laying in bed.

[00:10:46] Speaker 01:
His resistance... He had leg restraints on, right?

[00:10:48] Speaker 00:
He had leg shackles, and they had to continue to hold his legs as he was kicking so hard.

[00:10:52] Speaker 01:
Could they have left the room and shut the door?

[00:10:55] Speaker 00:
I don't know that it's clearly established that they were required to.

[00:10:58] Speaker 00:
And they said they didn't want to do that because they thought he would have got up and harmed himself or harmed them.

[00:11:04] Speaker 01:
But if the choice is between doing something that is deadly force when they're not at risk of deadly force or leaving the room and locking the door, it seems pretty obvious what the choice is.

[00:11:20] Speaker 00:
I don't think it's obvious, and I certainly don't think it's obvious in the context of Prom 2 of the qualified immunity analysis, which is there's no case law instructing what my clients are supposed to do in this situation.

[00:11:30] Speaker 01:
Well, if we agree with the district court that there is a material issue of fact about whether he stopped resisting, don't we have a lot of case law?

[00:11:42] Speaker 00:
Yes, but I continue to come back to the district court did not find a dispute of fact as to whether Loftin was resisting.

[00:11:49] Speaker 00:
The dispute of fact was whether or not he was at least, despite his resistance, in spite of his resistance and fighting, was there sufficient control to turn him over and try again to restrain him in a different position after they had already unsuccessfully tried that.

[00:12:03] Speaker 00:
And there is no clearly established case law indicating that they were required to do that.

[00:12:07] Speaker 00:
The closest cases

[00:12:08] Speaker 00:
our G and Adi and it's persuasive, but Lombardo from the Eighth Circuit where we have a very similar set of circumstances.

[00:12:16] Speaker 01:
The other cases... Well, we also have a case that says once you handcuff him, you can't.

[00:12:23] Speaker 01:
In this case, there's five minutes after he's both got the leg restraints and the handcuffs.

[00:12:30] Speaker 00:
I'm not sure that's supported in the factual record.

[00:12:32] Speaker 00:
The handcuffs come on very late, and shortly after the handcuffs, Mr. Wafton stopped resisting, and at that point... Well, he's dying.

[00:12:39] Speaker 00:
Right.

[00:12:40] Speaker 03:
Yes.

[00:12:41] Speaker 03:
So in the grand factors, you keep arguing resistance, which is the third factor.

[00:12:46] Speaker 03:
We've said repeatedly the second grand factor is more important about threat to safety.

[00:12:51] Speaker 03:
Do you argue also that in that position he was still a threat to the safety of the officers when there are five of them on top of him?

[00:12:57] Speaker 00:
I would push back on the characterization that five were on top of him.

[00:13:00] Speaker 03:
There are five at least present in some manner of control over him, some manner.

[00:13:05] Speaker 03:
You'll give me that, won't you?

[00:13:06] Speaker 00:
Yes, I will.

[00:13:09] Speaker 00:
know when the fight when the fight I mean it's it's a chicken or the egg situation he they were holding him down because he was a threat and he was threatening to kill them and was trying to break free from their hold so the minute they let go it starts again I don't know where I don't know how

[00:13:23] Speaker 00:
when you have to do these things to get them into control, or at least to try to get them under control, and then you can say, ha, there's no more threat, well, the minute they let go, there's going to be a threat again.

[00:13:32] Speaker 00:
That was certainly their perception.

[00:13:34] Speaker 01:
Well, is it a threat of deadly force or serious bodily injury?

[00:13:39] Speaker 01:
I mean, this kid's 135 pounds, and you've got five officers

[00:13:47] Speaker 01:
in the room, a room that he was locked in earlier.

[00:13:50] Speaker 01:
I mean, that force has to be proportional to factor two of Graham, which is the risk to the officers.

[00:14:01] Speaker 00:
I'd like to respond to that, and I'd like to reserve some time for rebuttal, so I'll respond to that.

[00:14:05] Speaker 00:
Well, do your best.

[00:14:06] Speaker 00:
I'll try.

[00:14:09] Speaker 00:
These were corrections officers.

[00:14:11] Speaker 00:
Mr. Lofton was described as incredibly strong.

[00:14:14] Speaker 00:
A dozen armed police officers, which my clients are not trained law enforcement officers, had to bring him in with a wrap.

[00:14:20] Speaker 00:
And my clients are not armed with tasers, they're not armed with Leslie the weapon, they're not armed with firearms.

[00:14:26] Speaker 00:
That's another reason they couldn't have pulled out a gun and shot him to answer a question.

[00:14:28] Speaker 00:
They had no other recourse.

[00:14:30] Speaker 00:
They had to restrain this child who was fighting like heck, like nothing they'd ever seen before Wichita PD could come back and get him.

[00:14:37] Speaker 00:
It is a situation unlike any other.

[00:14:40] Speaker 00:
It is new to them.

[00:14:41] Speaker 00:
There's no precedent for it.

[00:14:43] Speaker 00:
And that is why they are entitled to qualified immunity, because under strong two, which the district court did not go through, they did not violate a purely established right.

[00:14:50] Speaker 00:
I'd like to reserve the rest of my time, if I could.

[00:15:05] Speaker 04:
May it please the Court, my name is John Marisi and I represent Mark Wantiz on behalf of the estate of Cedric Laughlin.

[00:15:13] Speaker 04:
The Court focused a great deal on the video.

[00:15:16] Speaker 04:
The video is important to evidence, of course, to the trial court in here.

[00:15:21] Speaker 04:
Our position is the same as the District Court's, which is that viewing the video

[00:15:26] Speaker 04:
in particular the 12 minutes and two seconds that the district court identified in its opinion.

[00:15:32] Speaker 04:
You see, no movement from four officers.

[00:15:35] Speaker 04:
Those four officers do not dispute

[00:15:37] Speaker 04:
that Cedric Lofton was in the prone restraint during that time.

[00:15:41] Speaker 04:
Those officers do not dispute that they received training in the form of understanding that the restraint was lethal.

[00:15:50] Speaker 04:
Those officers cannot dispute that the video does not show Cedric Lofton move for a single second into the frame during that time.

[00:15:59] Speaker 04:
As a quick aside, watching the video, as I know the justices here have,

[00:16:06] Speaker 04:
It's longer than 12 minutes and two seconds that Cedric Lofton does not move.

[00:16:10] Speaker 04:
The 12 minute and two second period that was identified by the court in its opinion is a period of time that the officers do not talk about any resistance that's visible.

[00:16:25] Speaker 04:
So.

[00:16:25] Speaker 01:
But we don't have audio, right?

[00:16:27] Speaker 04:
We do not have audio, which is typical of video from correctional facilities.

[00:16:33] Speaker 04:
Although I will note,

[00:16:35] Speaker 04:
describing this as a correctional facility.

[00:16:37] Speaker 04:
Cedric Lofton was a juvenile.

[00:16:38] Speaker 04:
He was 17.

[00:16:39] Speaker 04:
This is the Juvenile Intake and Assessment Center.

[00:16:43] Speaker 04:
That facility has two parts and the particular part that Mr. Lofton was in, that Cedric was in, was an intake center.

[00:16:51] Speaker 04:
This is where they're brought just to be processed and really the plan was for Cedric to be released that night.

[00:16:58] Speaker 04:
The bottom line is

[00:17:00] Speaker 04:
a reasonable jury as the district court found could look at that video and say where is the constant resistance why is there no movement why are you sitting atop

[00:17:10] Speaker 04:
this 135-pound 17-year-old who is in shackles at the legs, who is shoeless, who is beltless, whose pants are around below his bottom, who is in clear mental distress.

[00:17:24] Speaker 04:
What is going on there?

[00:17:25] Speaker 04:
Because this is a visual.

[00:17:26] Speaker 04:
There's no sound.

[00:17:27] Speaker 04:
But what is happening there that requires you to use a restraint that you know to be lethal?

[00:17:33] Speaker 03:
Well, the officers are arguing though that throughout this time there was resistance and they all in their depositions and their evidences that that's not really contradicted that he's threatening to kill them, that he was verbally saying things and that the video cannot contradict that because we can't hear anything.

[00:17:56] Speaker 03:
And so they say, well, the district court

[00:18:00] Speaker 03:
could not have relied exclusively on the video to counter this testimony.

[00:18:04] Speaker 03:
But what's your response to that?

[00:18:06] Speaker 03:
A couple of things.

[00:18:07] Speaker 04:
First, with respect to the video, you can rely on the video to counter that.

[00:18:12] Speaker 04:
The fact that Cedric never comes into the frame, what you understand about his positioning, his shackling, and the rest, you can conclude, as the district court found, that there was no resistance during that period of time.

[00:18:28] Speaker 04:
or at least such minimally effective resistance, those are my words, not the district courts, but at least such minimally concerning or effective resistance that it requires you, with the assistance of four, five, or sixth officer that you turned away to deal with children in the shower, to sit the child up, you know the position is lethal.

[00:18:49] Speaker 04:
So sit him up at that point.

[00:18:51] Speaker 04:
You can look at the video alone and say that.

[00:18:54] Speaker 04:
There is abundant other evidence in the record

[00:18:58] Speaker 04:
which rebuts the officer's claim that there was frightening resistance essentially from this 135-pound shackled child who was faced down on the floor under 1,000-plus pounds of officer.

[00:19:12] Speaker 01:
What about the medical evidence?

[00:19:15] Speaker 01:
They say the medical evidence indicates that he was struggling mightily the whole time.

[00:19:21] Speaker 04:
That's not accurate.

[00:19:22] Speaker 04:
So what they're referring to is one of plaintiff's experts, Dr. Alon Steinberg, who is an expert in, he's a cardiologist, he's an expert in cardiac conditions and events, and he's dealt with prone restraint cases before, both clinically and in the litigation context.

[00:19:38] Speaker 04:
What he says in this

[00:19:40] Speaker 04:
as an aside, pushes back on the notion that there was no oxygen demand issue here.

[00:19:45] Speaker 04:
This isn't positional fixie, as counsel said.

[00:19:47] Speaker 04:
There's no oxygen, you know, there's no intake of air issue.

[00:19:49] Speaker 04:
That's wrong.

[00:19:50] Speaker 04:
What Dr. Steinberg says is, in a situation like this, when you are being put in a position face down, chest down, on a hard surface, as Cedric Lofton does, with the amount of force that we know is used from the deep tissue hemorrhaging in his back, when that happens,

[00:20:07] Speaker 04:
you have increased demands for air because you could be struggling against it.

[00:20:13] Speaker 04:
You could be struggling to breathe.

[00:20:14] Speaker 04:
He's not the fact finder.

[00:20:17] Speaker 04:
He's not taking the position as to whether Cedric was struggling against the officers with mighty resistance or just trying to survive.

[00:20:24] Speaker 04:
He's not saying that.

[00:20:25] Speaker 04:
What he's saying is this force causes you to require more air, but because your body is being compressed on a hard surface,

[00:20:34] Speaker 04:
the amount of force we know the officers were using again from the deep tissue hemorrhaging, you can't get the air.

[00:20:39] Speaker 04:
So your body goes into a state of acidosis, which leads to a cardiac event.

[00:20:44] Speaker 04:
So that's why Dr. Steinberg and, in fact, the Sedgwick County Medical Examiner.

[00:20:49] Speaker 04:
So that's Dr. Gurrell, right?

[00:20:51] Speaker 04:
Correct.

[00:20:51] Speaker 03:
So the medical examiner.

[00:20:53] Speaker 03:
Do I kind of read the briefs to say that

[00:20:55] Speaker 03:
At least your position would be in Dr. Correll's bottom line determination on the manner of death, homicide may have some additional language that they pull out the one word struggling to say, well, Dr. Correll's interpretation of the evidence here shows that from a

[00:21:10] Speaker 03:
essentially the legal consequence that the third gram factor is satisfied.

[00:21:14] Speaker 03:
And I read your response to be, well, no, he's saying that the struggle here, or he doesn't find what the struggle means.

[00:21:21] Speaker 03:
It could be he's struggling to breathe, to have blood circulation, any other interpretations that would be reasonable.

[00:21:27] Speaker 03:
Is that an accurate recitation?

[00:21:28] Speaker 03:
That is accurate, Your Honor.

[00:21:29] Speaker 04:
And I would add on top, if you read the entirety of Dr. Steinberg's

[00:21:32] Speaker 04:
opinion and his position and deposition, he was questioned.

[00:21:36] Speaker 04:
His position is that this was avoidable and that the force applied... Dr. Gorell or Dr. Steinberg?

[00:21:42] Speaker 04:
I'm sorry, I'm talking about Steinberg now.

[00:21:43] Speaker 04:
I know you were talking about Dr. Gorell.

[00:21:45] Speaker 04:
So you are correct.

[00:21:46] Speaker 04:
The answer to your question is you're correct.

[00:21:48] Speaker 01:
Well, I think it's... Dr. Turner also said that the hemorrhaging was indicative of blunt force trauma.

[00:21:57] Speaker 04:
That's correct.

[00:21:57] Speaker 04:
Dr. Turner actually did an autopsy.

[00:22:01] Speaker 04:
in a separate one after Dr. Gorill, and she did something additional that hadn't been done.

[00:22:07] Speaker 04:
She cut open Cedric Lofton's back, and that's why we know there is extreme and significant deep tissue hemorrhaging there, demonstrative of force on the back, that officers admit to in impromptu body camera interviews after the fact, but deny in deposition when we're in litigation.

[00:22:28] Speaker 03:
What's your best case for clearly established law and the prolonged use of the firm position?

[00:22:33] Speaker 04:
As I know, Your Honor knows, we make the case that this is the obvious, egregious example on the record.

[00:22:39] Speaker 04:
That applies with obvious clarity language.

[00:22:41] Speaker 04:
Yes, when you have a third, and I'm not going to spend too much time on this because I know your question is case law, but when you have a 39-minute restraint with extended periods of time that far exceed the three minutes they found in Weigel to be excessive, which I'll talk about in a second.

[00:22:57] Speaker 04:
on a shackled child in obvious mental distress.

[00:23:00] Speaker 04:
Officer Stepien walks out to call 911 and specifically call to get him to a hospital.

[00:23:06] Speaker 04:
They know this.

[00:23:07] Speaker 04:
He's calling himself both Jesus and Satan, I believe they say.

[00:23:12] Speaker 04:
Again, we can't hear that, but that's what they say he was saying.

[00:23:14] Speaker 04:
And so in that instance, we are talking here, and it's a terrible thing to be hyperbolic, particularly in this

[00:23:23] Speaker 04:
room, we are talking about the most egregious prone restraint by officers on an individual, again a juvenile in mental distress, document in the country, in case law.

[00:23:35] Speaker 04:
We've all cited cases in this case.

[00:23:36] Speaker 04:
There's no case approaching it.

[00:23:38] Speaker 04:
Now that doesn't mean that's what the jury's going to find.

[00:23:40] Speaker 04:
Okay?

[00:23:41] Speaker 04:
The officers will put up a defense.

[00:23:42] Speaker 04:
But on the record here, that the Chief District Judge, Judge Melgren, found, it is the most egregious prone restraint case.

[00:23:51] Speaker 04:
So it's the obvious one that the Supreme Court talks about that says, you may not have a prior on all fours case because it's so egregious.

[00:23:59] Speaker 04:
So it would be perverse to say, well, we don't have a prior example, so this terrible thing... Well, but it's not so legal, isn't it?

[00:24:04] Speaker 04:
It is.

[00:24:05] Speaker 04:
I spoke longer on that than I said I was going to.

[00:24:08] Speaker 04:
And so the Weigel case in 2008, which addresses 2002 conduct, is a case that involved far more significant resistance

[00:24:23] Speaker 04:
in an on-the-side-of-the-road encounter with officers who were armed where the subject tried both to kill himself by running into oncoming traffic and then taking the officer's weapons.

[00:24:35] Speaker 04:
But the officers were able to get him subdued with the assistance of a bystander, actually.

[00:24:40] Speaker 04:
And the court in that case finds that after he's subdued with the use of handcuffs and on the side of the road, that a three-minute period from 7.57 a.m.

[00:24:51] Speaker 04:
to 8 a.m.

[00:24:53] Speaker 04:
was a significant period of time to continue a prompt restraint on that adult subject on the side of the road when he was trying to grab the officer's weapons in advance.

[00:25:04] Speaker 04:
Now, they had him subdued.

[00:25:05] Speaker 04:
So three minutes.

[00:25:06] Speaker 04:
Here, we're talking about, to get into the video, we're talking about far longer than 12 minutes.

[00:25:13] Speaker 04:
But Judge Melgreen was talking about, look, I mean, this period of time isn't even in dispute.

[00:25:17] Speaker 04:
So you're talking about four times the amount

[00:25:20] Speaker 04:
child in a controlled facility.

[00:25:23] Speaker 04:
So Weagle easily establishes that continued restraint in this fashion, again, extreme force to the back on a shackled child in a controlled facility for many, many, many, many minutes.

[00:25:36] Speaker 04:
We would argue most of the 39 minutes is easily established.

[00:25:41] Speaker 04:
It was, in fact, in large part of it.

[00:25:44] Speaker 04:
The facts are a little different, because in particular, it involved a hog tie restraint.

[00:25:48] Speaker 04:
The cruise decision

[00:25:49] Speaker 04:
addressed 1996 hog time.

[00:25:53] Speaker 04:
So we're talking 25 years before the events in this case.

[00:25:59] Speaker 04:
The court found the conduct there, with respect to that mentally ill gentleman who was subject to police use of force, was unconstitutional.

[00:26:07] Speaker 04:
Now, it wasn't clearly established in 2001 when Cruz came down.

[00:26:11] Speaker 04:
But we are now talking about September 27, 2021, post George Floyd, which

[00:26:19] Speaker 04:
is not necessarily the judicial decisions we're relying on, but it is relevant because these officers, the director of corrections here, admitted, yeah, we trained them on use of prone restraint.

[00:26:32] Speaker 04:
We told them this was dangerous.

[00:26:33] Speaker 04:
They knew they had to get somebody up quickly.

[00:26:36] Speaker 04:
So with that testimony in the case law, including Weigel and then several other cases that make the general point, continue use of prone restraint after a subject is subdued is excessive, and that's clearly established.

[00:26:48] Speaker 01:
Even if the subject is resisting, but you, the officers, are not at risk of serious bodily injury or deadly force, can you continue to employ a prone restraint?

[00:27:10] Speaker 04:
Absolutely not.

[00:27:11] Speaker 04:
In the Supreme Court in Lombardo, there's a dissent.

[00:27:15] Speaker 04:
by Justice Thomas, joined by Justices Alito and Gorsuch.

[00:27:19] Speaker 04:
And in the dissent, he posits an example.

[00:27:24] Speaker 04:
And the nature of the example is

[00:27:28] Speaker 04:
It's to demonstrate how absurd it is to suggest that the Eighth Circuit, where the case was coming from, would find that this is appropriate use of force.

[00:27:39] Speaker 04:
The court is quoted, it says, can the court seriously think that the Eighth Circuit adopted such a strange and extreme position?

[00:27:45] Speaker 04:
That the use of a prone restraint on a resisting detainee, so someone who's resisting, unlike

[00:27:51] Speaker 04:
the record here where Cedric Lawton was not, if you watch the video and conclude that way.

[00:27:55] Speaker 04:
But on a resisting detainee is always reasonable, no matter how long that force is deployed, no matter the physical condition of the detainee, and no matter whether the detainee is obviously suffering serious or even life-threatening harm.

[00:28:09] Speaker 04:
Suppose officers with a combined weight of a thousand pounds, that's what we have here, we have a thousand plus pounds, knelt on the back of a frail and infirm detainee, Cedric Lofton, mental distress, 135 pound child in shackles, used all their might to press his chest and face to a concrete floor over an hour.

[00:28:26] Speaker 04:
Did not desist when the detainee cried, you're killing me, and ended up inflicting fatal injuries.

[00:28:31] Speaker 04:
Does the court really believe

[00:28:33] Speaker 04:
that the Eighth Circuit might have thought that this extreme use of force would be reasonable?

[00:28:37] Speaker 04:
It's obviously a rhetorical question.

[00:28:39] Speaker 04:
They wouldn't.

[00:28:40] Speaker 04:
So to answer your question, Judge, the nature of the resistance, it is essential to look at that to determine whether or not the use of force in response is proportionate.

[00:28:49] Speaker 04:
They knew the use of force here was lethal.

[00:28:51] Speaker 04:
There's no question.

[00:28:52] Speaker 04:
It was not proportionate.

[00:28:57] Speaker 04:
I will yield my time unless there are any further questions.

[00:29:01] Speaker 01:
Thank you.

[00:29:03] Speaker 01:
And let's give him a full minute and have a little laugh.

[00:29:16] Speaker 00:
I would just note that there was a concession that we can rely on what Mr. Lofton was saying during the restraint.

[00:29:21] Speaker 00:
He was saying, I'm Jesus.

[00:29:22] Speaker 00:
He was saying, I'm Satan.

[00:29:24] Speaker 00:
He was also saying, I'm going to kill you.

[00:29:26] Speaker 00:
And he was saying it over and over and over again as he was trying to get loose from the holds.

[00:29:30] Speaker 00:
After he had punched Stephanie in the face, after he had tried to choke out Mr. Newby.

[00:29:34] Speaker 00:
So this situation was out of control.

[00:29:36] Speaker 00:
This was not a frail detainee.

[00:29:38] Speaker 00:
This was somebody who was fighting like these clients had never seen before.

[00:29:41] Speaker 00:
Also, the medical opinions have been misstated.

[00:29:44] Speaker 00:
Both Dr. Steinberg and Dr. Gorill, their testimony requires Lofton to be fighting.

[00:29:51] Speaker 00:
It requires a deficit.

[00:29:53] Speaker 00:
It requires a deficit in air.

[00:29:54] Speaker 00:
He was working harder.

[00:29:56] Speaker 00:
That's how he got into the anabolic state.

[00:29:59] Speaker 00:
He was working harder to get more air in, and he had less ability to do so because he was in the prone restraint.

[00:30:04] Speaker 00:
That is both of their opinion.

[00:30:05] Speaker 00:
Dr. Gorill was asked what caused Cedric Lofton's death, and he said the fight

[00:30:10] Speaker 00:
and the restraint there, multi-factorial.

[00:30:12] Speaker 00:
If Lofton had been laying there, as this made-up narrative says, without doing anything, he'd be alive.

[00:30:20] Speaker 00:
He wouldn't have died.

[00:30:21] Speaker 00:
He was only died because he was fighting and because he had an air deficit.

[00:30:25] Speaker 00:
Also, I will just finish with neither a dissent nor a George Floyd unrelated case with different factual circumstances established cruelly established law, then circuit precedent does, and my clients did not violate cruelly established law.

[00:30:38] Speaker 00:
Thank you.