[00:00:00] Speaker 03: In the next case we'll hear, in just a moment, is the estate of Kevin Dismont versus Reed, and this is 25-11-18. [00:00:12] Speaker 03: Okay, we'll hear from the appellate whenever you'd like. [00:00:25] Speaker 03: Incidentally, and I think the appellees, you're going to [00:00:28] Speaker 03: You're going to alternate? [00:00:31] Speaker 03: OK. [00:00:32] Speaker 03: Alternate at your own risk. [00:00:38] Speaker 01: Good morning. [00:00:39] Speaker 01: May it please the court. [00:00:40] Speaker 01: My name is Harry Daniels. [00:00:42] Speaker 01: I represent the appellate sitting at the table, Ms. [00:00:45] Speaker 01: Kendall James, who she is the Administrator of the State for her father, Kevin Dismaine. [00:00:50] Speaker 01: You know, as we appeal this case from the district court, because we believe this court error and failed to consider that the act by one of the [00:00:58] Speaker 01: Appellate Fischer, the paramedic, act was egregious conduct, that it was so egregious that a case need not to be directly on point, nor a case in the tenth circuit nor the Supreme Court to determine if this was a constitutional violation. [00:01:19] Speaker 01: Your Honor, we're talking about a case dealing with a person who shows signs of auction deprived, breathing [00:01:28] Speaker 01: that was in distress, breathing, apoxia, and the paramedic who we believe, based on allegation and complaint, is somebody who is trained to identify those medical issues. [00:01:40] Speaker 01: Instead, this paramedic engaged a tackle, Mr. Dismaine, as alleged in the complaint, and wrapped his arm around his neck. [00:01:50] Speaker 01: Then we chopped him out to a choke hold that resulted into the death of Mr. Dismaine. [00:01:55] Speaker 01: I believe that is undisputed at this time in the allegation complaint, particularly as we allege that five doctors opined that the cause of death was due to physical restraint. [00:02:05] Speaker 01: We are aware of the district court's position as it relates to whether this law clearly established. [00:02:11] Speaker 01: And I think that when you have an act so egregious as this, that I think this is directly where we talk about the Casey case in Capitol Heights. [00:02:20] Speaker 01: We talk about a sliding scale where this court should not be waiting for a case [00:02:24] Speaker 01: directly on porn, or similar, to determine if this was a constitutional violation. [00:02:30] Speaker 01: I think this case really tantamounts to the acts of Appalachian Fisher, kind of tantamounts to where a doctor goes into a hospital room and sees a patient struggling to breathe and takes the oxygen mask away from him. [00:02:42] Speaker 01: Now, obviously, that didn't happen. [00:02:43] Speaker 01: But we still talk about restraint that restricted Mr. Agismaine's oxygen and breathing that resulted in his death. [00:02:52] Speaker 01: I think one of the things that the judicial court [00:02:54] Speaker 01: determined that the appellants did not show in the allegation that the Appellee Fisher was engaging in law enforcement functions. [00:03:05] Speaker 01: I believe based on the reading of the complaint, of course, we had a motion to dismiss stage where the allegation and complaints should be accepted as true. [00:03:13] Speaker 01: And like most favorites of the non-moving party, the appellants here, where you have in the complaint the acts, the allegation of what transpired with Appellate Reed, the officer, [00:03:23] Speaker 01: who responded as well, where he was ordering Mr. Dismaine to put his hand behind his back. [00:03:30] Speaker 01: He initially told him to sit down, and he told him to put his hand behind his back. [00:03:33] Speaker 01: Mr. Dismaine was resistant. [00:03:36] Speaker 01: Then he basically escalated and told him to put his hand behind his back, Mr. Dismaine. [00:03:41] Speaker 01: I don't want to say he flipped, but he walked away from it, which now the appellee Fisher taps him to the ground. [00:03:49] Speaker 01: And when you look at this complaint, and you even go after the fact, [00:03:53] Speaker 01: And you look at the dialogue within the hospital setting. [00:03:56] Speaker 01: And the question about one of the nurses asked Mr. Fisher, he says, you arrested that boy. [00:04:03] Speaker 01: And Fisher says, no, the cop did. [00:04:05] Speaker 01: He was chasing him. [00:04:07] Speaker 01: But we lost him between the little grove of trees. [00:04:10] Speaker 01: So I was like, and he shrugged. [00:04:11] Speaker 01: And that's what he's talking about. [00:04:13] Speaker 01: So even if you draw an inference from that statement, which I don't think you have a drawn inference, I think the facts [00:04:19] Speaker 01: within the complaint really shows that he's talking about arresting, detaining Mr. Dismay in this situation. [00:04:26] Speaker 00: What if he's trying... Go ahead. [00:04:28] Speaker 00: No, no. [00:04:28] Speaker 00: Go ahead, Judge. [00:04:29] Speaker 02: What if, as a paramedic, it's his view that there's someone who's not acting rationally, they're near a road, there's safety risk either to Mr. Dismay or other people around him, and he's using his medical judgment that the individual needs to be restrained? [00:04:45] Speaker 01: Well, that could happen. [00:04:46] Speaker 01: And in fact, it's a case [00:04:48] Speaker 01: within this district, and I believe this is, I hope I pronounced it right, Van Landenham versus the City of Oklahoma. [00:04:55] Speaker 01: It's a 2022 case in the Western District of Oklahoma. [00:04:58] Speaker 01: It's kind of instructive here, where a paramedic in that situation was trying... Is this in your brief? [00:05:04] Speaker 00: Or did you cite that in your brief? [00:05:05] Speaker 01: Yes, it's within the brief, yes. [00:05:08] Speaker 01: Where the paramedic, in fact, was trying to restrain a person in order to do their job. [00:05:13] Speaker 01: And the district court in that case said, well, we don't find this a seizure under the Fourth Amendment. [00:05:17] Speaker 01: because they were trying to restrain. [00:05:19] Speaker 01: And they really turned on the issue of who initiated. [00:05:22] Speaker 01: Was it a seizure? [00:05:23] Speaker 01: Was it a restraint for medical purpose? [00:05:25] Speaker 01: And in that case, the paramedics initially were by themselves. [00:05:28] Speaker 01: They were alone. [00:05:30] Speaker 01: Law enforcement wasn't there at all. [00:05:32] Speaker 01: A law enforcement eventually came to the scene, and the paramedic asked the officer, could he put handcuffs on them so we could continue to do our job? [00:05:41] Speaker 01: That's a different fact pattern here in this case. [00:05:44] Speaker 01: The first person that engaged [00:05:46] Speaker 01: Mr. Dismay was the officer. [00:05:48] Speaker 01: And in fact, and I know the district court said he relied on the complaint. [00:05:54] Speaker 01: And I know that the videos are also submitted in this case. [00:05:56] Speaker 01: But even if you look at the video, the officer Reed, he tells him, I'm giving you an order. [00:06:00] Speaker 01: This is an order. [00:06:02] Speaker 01: This is a lawful order. [00:06:03] Speaker 01: When you're talking about lawful order, you're talking about a seizure at that point. [00:06:06] Speaker 01: I think we pointed to the case. [00:06:09] Speaker 01: But that's Officer Reed. [00:06:10] Speaker 01: Right. [00:06:11] Speaker 02: I thought you were talking about Paramedic Fisher. [00:06:14] Speaker 01: Well, we believe Paramedic Fisher. [00:06:18] Speaker 01: He basically, in this case, assisted and aided Officer Reed in the seizure of Mr. Dismaine here. [00:06:25] Speaker 01: And I think one of the things that need to be really fleshed out is whether we're talking about a seizure or we're talking about a restraint for the purpose of providing medical treatment here. [00:06:38] Speaker 01: And I think that's what the district court [00:06:40] Speaker 01: kind of decide, like, this is more of a medical restraint versus a situation of a, well, a Fourth Amendment decision would come in. [00:06:49] Speaker 01: And in the opposition act, when you look at this complaint and you look at the acts of Officer Reed and, like, in Appellate Fisher, where he engages with Officer Reed to seize him, [00:07:02] Speaker 01: to place him under arrest, detention, whatever you want to call it, then he now is shifting away from providing medical care. [00:07:09] Speaker 01: In fact, throughout the course of the complaint that we alleged, he didn't even provide medical care at all. [00:07:14] Speaker 02: Isn't the whatever you want to call it the whole bit here? [00:07:17] Speaker 02: I mean, that's the entire question, is whether the paramedic is acting with an intent to provide medical services to the individual or whether it's with an intent and purpose to arrest or to prevent unlawful conduct or [00:07:32] Speaker 02: to affect an arrest. [00:07:33] Speaker 02: There's no there's no allegation about that in the complaint, is there? [00:07:37] Speaker 02: Well, about paramedic Fisher's intent. [00:07:40] Speaker 01: Well, I think I think paramedic Fisher intent is relevant is relevant here because you look at objective, reasonable standpoint, what was taking place at that time. [00:07:48] Speaker 01: And we're really at this point is talking about a complaint. [00:07:51] Speaker 01: The complaint alleges at that time that Officer Reed was engaging in seizing Mr. Dismaine. [00:07:59] Speaker 01: And if you want to really look at the intent element of this case and say what was his intent, I think if you look at the intent, he didn't provide any medical care. [00:08:07] Speaker 01: And he said that they were trying to arrest Mr. Dismaine. [00:08:13] Speaker 01: But he didn't say it. [00:08:14] Speaker 01: He acknowledged that the arrest was taking place. [00:08:17] Speaker 02: So the other circuits that have taken this issue up are related issues of paramedics. [00:08:22] Speaker 02: in similar situations draw out this complication because there's this overlap. [00:08:26] Speaker 02: If you've got someone that needs to be restrained so you can provide medical services, then the question is, well, is the restraint to provide medical services or for some law enforcement purpose? [00:08:36] Speaker 02: And you say that this is a case that's so extreme that you don't need to point to similar case law, but in fact, [00:08:44] Speaker 02: Well, how do we deal with the issue that all the case law that appears to exist in the other circuits cuts the other way? [00:08:49] Speaker 02: What do we do with that? [00:08:50] Speaker 01: Because I think when you look at the fact patterns in this case, you've got to look at the facts in each case, not just the over-broad sweep. [00:08:57] Speaker 01: When you look at the facts in the facts in this case, you have a person that's struggling to breathe. [00:09:02] Speaker 01: The issue is he's hunched over. [00:09:05] Speaker 01: He's oxygen deprived. [00:09:07] Speaker 01: He barely can speak because he can't breathe. [00:09:10] Speaker 01: Then you have a paramedic, a trained medical person [00:09:13] Speaker 01: who in fact engages and afflicts an act on this individual where he used a maneuver that restricts his airway that leads to his death. [00:09:24] Speaker 02: I think when you look at those other cases. [00:09:25] Speaker 02: Is that a breach of the standard of care as a medical provider, or is it a law enforcement act? [00:09:30] Speaker 01: Well, it's both. [00:09:32] Speaker 01: It's actually both. [00:09:32] Speaker 01: It's a breach of standard of care. [00:09:34] Speaker 01: And when you engage in law enforcement acts, absolutely, then it carries over to now you engage in a seizure. [00:09:40] Speaker 01: And I think that this court's already determined [00:09:42] Speaker 01: that it doesn't really matter the title of the person. [00:09:47] Speaker 01: In fact, in Jones v. Hunt, a 2005 case, this court explicitly recognized that the Fourth Amendment applies to social workers upon the same objective and reasonable standard used for police that demonstrates excessive force analysis is not limited to law enforcement personnel. [00:10:04] Speaker 01: That's a 2005 case. [00:10:06] Speaker 01: I don't think it's brief, but it's Jones v. Hunt. [00:10:08] Speaker 01: So when you look at that case, that case is not even dealing with law enforcement. [00:10:12] Speaker 01: It's dealing with a social worker. [00:10:14] Speaker 01: So I think when we get into this, what was the intent? [00:10:17] Speaker 01: What was the intent of the paramedic? [00:10:18] Speaker 01: Particularly, what was he doing? [00:10:20] Speaker 01: We had to look at the objective of the standard as to what took place as alleged in this complaint. [00:10:25] Speaker 01: And we believe this complaint meets the possible standard, Iqbal normally too standard, that shatters that he was engaging in law enforcement [00:10:34] Speaker 00: Could I interrupt you with a couple of questions that go beyond? [00:10:39] Speaker 00: I think I understand your argument that you have made objectively you have given facts that would indicate at the dismissal stage that this was a seizure because the intent was to restrain not to provide, do something else like provide medical services. [00:10:58] Speaker 00: But my concern is, first of all, the district court here didn't go beyond the seizure question. [00:11:03] Speaker 00: It found as a matter of law there was no seizure and there couldn't be. [00:11:06] Speaker 00: I guess my question to you is if we go beyond the seizure and say, yes, there are at least at the motion to dismiss stage objective factors that would support the seizure, we don't have a determination by the district court here of reasonableness. [00:11:21] Speaker 01: That's correct. [00:11:22] Speaker 00: The courts... Do we need to send it back, is my question. [00:11:25] Speaker 01: And I believe on those grounds alone, it could be sent back, because you have an A... [00:11:30] Speaker 01: in a B, the court should need to get to that, pass the A to even determine the... Can we get to reasonableness? [00:11:34] Speaker 00: Well, I believe that based on these... Did the district court make enough fact findings that we could get to reasonableness ourselves? [00:11:41] Speaker 01: Well, I think based on the complaint itself and within the... Well, yes, that's right. [00:11:46] Speaker 00: I don't mean fact findings. [00:11:47] Speaker 00: I mean, we don't need... You're right. [00:11:48] Speaker 00: It's a dismissal stage. [00:11:49] Speaker 00: So we don't need to worry about sending it back. [00:11:51] Speaker 00: I've forgotten that. [00:11:52] Speaker 00: Okay. [00:11:52] Speaker 00: So then my next question is, if we get to that point, [00:11:57] Speaker 00: I don't see where, even if we would agree that this was potentially a seizure, this was a seizure, and even if we were to find a constitutional violation or assume one as the district court did here, despite finding no seizure, [00:12:12] Speaker 00: Tell me about the clearly established prong. [00:12:15] Speaker 00: What authority are you looking to where this, not only the officer, but here would have been the paramedic, would have had notice that his conduct under these particular facts was a constitutional violation? [00:12:35] Speaker 01: Well, I think that you can look to the case [00:12:40] Speaker 01: with the case versus Weigel versus Broad case, where you're dealing with a person who is exhibiting those symptoms, particularly dealing with that Mr. Desmaine was exhibiting, with his course of determining that even using on a person that's in a prone position and putting pressure on their upper torso, [00:13:00] Speaker 01: could result in death. [00:13:02] Speaker 00: So I think it's... Well, I mean, this was not... There's cases out there, but they're usually several minutes of either the person's in that prone position or they're not moving. [00:13:14] Speaker 00: This all happened, from what I could tell, within a minute or less. [00:13:20] Speaker 01: That's correct, Your Honor. [00:13:21] Speaker 00: And the purpose of the restraint appeared to be to help [00:13:25] Speaker 00: the officer who then moved right in and handcuffed him. [00:13:30] Speaker 00: I mean, there wasn't a long period of time, as far as I could tell. [00:13:33] Speaker 00: I mean, I guess I'm concerned that this is similar enough to the cases that you cited, that it would have been obvious that this was a constitutional violation. [00:13:44] Speaker 01: Well, I think even if it's not a case directly on point, and very seldom, and obviously, you're talking about Supreme Court Graham v. Conner, where [00:13:52] Speaker 01: the court should say it's almost never a published case directly on point. [00:13:55] Speaker 00: I get that. [00:13:56] Speaker 00: I understand that. [00:13:57] Speaker 00: In this area, it needs to be pretty close. [00:14:02] Speaker 00: And we also have a paramedic here, and I don't quite know how that factors in. [00:14:06] Speaker 00: If it was a seizure, it was a seizure, but if it was unreasonable, it was unreasonable. [00:14:12] Speaker 01: I think when you look at the context of the case, particularly at this stage, and we're talking about [00:14:17] Speaker 01: the officer egregious. [00:14:18] Speaker 01: I think when you look at facts, fact-specific, and I think you have to look at the facts when you're dealing with a use of force, particularly a Fourth Amendment violation. [00:14:27] Speaker 01: And as I stated before, you had officer Reed and a paramedic come in and send a person in a position that clearly was oxygen deprived, who was hunched over, who was dealing with needed oxygen. [00:14:41] Speaker 01: And then subsequently, that same paramedic uses a restraint to deprive him of oxygen. [00:14:47] Speaker 01: I think you get beyond. [00:14:49] Speaker 01: To me, it's like when you have a case, if you have a person that's in a helicopter, police helicopter, and you don't have a case before and they push him out. [00:14:57] Speaker 01: I think the facts are so obviously egregious that you don't even need a case on point. [00:15:02] Speaker 01: where this paramedic engaged particularly in this conduct and act. [00:15:05] Speaker 01: And I think I'm out of time. [00:15:07] Speaker 00: I'm sorry. [00:15:07] Speaker 00: I've got another question. [00:15:08] Speaker 00: And maybe, yeah, I apologize. [00:15:11] Speaker 00: Can't let you sit down just yet. [00:15:12] Speaker 00: But I have a question on your claim against the other officer, or the other individual defendant, Officer Reed. [00:15:21] Speaker 00: Correct. [00:15:22] Speaker 00: And it seems to me that you have [00:15:24] Speaker 00: may be waived or given up on your claim, which below, as I read it, was the violation of the duty to intervene, that he should have intervened when this was all going on. [00:15:39] Speaker 00: And that's how it was briefed, and that's how the district court decided [00:15:43] Speaker 00: But then you're now here on appeal, and you're talking about a substantive due process violation, as far as I can see. [00:15:52] Speaker 00: There's no mention of any duty to intervene. [00:15:54] Speaker 00: And it seems to be a different claim that wasn't made below. [00:16:00] Speaker 00: Can you explain that? [00:16:02] Speaker 01: Well, I think that when you're talking about the, obviously, at the stage where you're talking about most of these minutes, and the claims are particularly made, and the complaint as to whether [00:16:13] Speaker 00: I'm talking about the legal claim now, not the facts. [00:16:17] Speaker 00: It seems to have morphed at the appeal stage into a 14th Amendment claim instead of a 4th Amendment claim. [00:16:25] Speaker 01: Are you particularly talking about a special relationship? [00:16:28] Speaker 00: Yeah, that's what you're alleging in the appeal. [00:16:31] Speaker 01: So I think within the context of that brief is that we're not waiving our intervener. [00:16:38] Speaker 01: We just gave another way, particularly where you're talking about an officer who have a special relationship [00:16:42] Speaker 01: To the extent that this court's determined there was no seizure by the paramedic, we didn't waive that he had a duty to intervene. [00:16:52] Speaker 00: I think within the context of the- Did you even argue the duty to intervene under the Fourth Amendment in your appeal brief? [00:16:57] Speaker 00: I didn't see it. [00:16:58] Speaker 01: Well, I think in the context of he had a duty to stop. [00:17:03] Speaker 01: Under the special relationship argument, I believe that's where it's embedded that he had a duty to intervene, particularly to stop him from what we believe was committing [00:17:11] Speaker 01: a constitutional violation. [00:17:13] Speaker 01: So I think within the context of that argument, there's no waiver of the duty to intervene. [00:17:18] Speaker 01: I think more so the title talks about special relationship, but we still, within the confinements, that he had a duty to intervene to stop the appellee Fisher from, that we believe is using a chokehold on Mr. Du Swain. [00:17:33] Speaker 01: So that's kind of where we stand in our argument, particularly within the context of that special relationship argument, that he still had a duty to intervene. [00:17:41] Speaker 01: I don't believe we waived it. [00:17:42] Speaker 00: Okay, thank you. [00:17:45] Speaker 03: I think you signed to Jones versus Hunt, and I don't think, I think you were acknowledging that that's a new site, is that right? [00:17:51] Speaker 03: Because I don't, I didn't see that. [00:17:53] Speaker 01: Yes, your honor, Jones versus Hunt. [00:17:55] Speaker 03: Do you mind, do you mind, sometime this week, we have a rule 28J, and I should say you hadn't done anything wrong, but I was going to ask you to do me a favor. [00:18:08] Speaker 03: Would you file a letter, you might look at that rule, 28J, and you file it with the court clerk, and the only thing that I was going to ask you to put in there is the citation for Jones v. Hutt. [00:18:23] Speaker 03: You don't need to make, in fact, I'd ask you, don't make any argument. [00:18:26] Speaker 03: You already made it today. [00:18:27] Speaker 03: But that way, when we're looking for that case, we'll know where to find it. [00:18:31] Speaker 03: Thank you. [00:18:33] Speaker 03: And unfortunately, you have been fully heard, but I think you ran out of rebuttal. [00:18:39] Speaker 03: Thank you. [00:18:40] Speaker 03: Okay. [00:18:41] Speaker 03: We'll hear from the appellee. [00:18:45] Speaker 05: Good morning, Your Honors, and may it please the Court. [00:18:47] Speaker 05: My name is Jonathan Eddy. [00:18:48] Speaker 05: I'm here on behalf of Paramedic Defendant Nick Fisher. [00:18:51] Speaker 05: With me is Counsel for Officer Reed Mr. Vaughn. [00:18:54] Speaker 05: He and I intend to split time equally today, so we'll have time to address [00:18:58] Speaker 05: issues that are specific to his client. [00:19:00] Speaker 05: So I'll do my best to make my arguments as efficiently as possible so Mr. Vaughn has enough time. [00:19:05] Speaker 05: At bottom, Your Honors, the estate has failed to overcome Nick Fisher's qualified immunity. [00:19:13] Speaker 05: It has not identified any clearly established law. [00:19:16] Speaker 05: Specifically, Mr. Daniels has not put forward a single case finding that a paramedic violates the Constitution when he's in the process of effectuating [00:19:26] Speaker 05: in the process of restraining an individual for purposes of a medical transport. [00:19:31] Speaker 05: While this wasn't addressed today at oral argument, plaintiff relies on the Torres versus Madrid case in his briefing. [00:19:37] Speaker 05: Torres versus Madrid is not on point, Your Honor. [00:19:39] Speaker 05: It does not advance their argument. [00:19:42] Speaker 05: Torres versus Madrid was expressly limited to apprehensions and dealt with the application of force. [00:19:48] Speaker 05: In that case, the shooting of a suspect while officers were in the process of effectuating a felony arrest warrant. [00:19:55] Speaker 05: Torres versus Madrid also relied heavily on the Hodari D decision, which itself dealt exclusively with arrest, and specifically in that case, officers attempting to effectuate an arrest of a fleeing suspect. [00:20:07] Speaker 03: Well, what if he did? [00:20:09] Speaker 03: To take that example, what if he did not to effect an arrest, but, you know, we've got to get this guy in a transport, he may walk in front of traffic again, and Fisher shoots him [00:20:24] Speaker 03: in the leg, wants to make sure he's clear, he's not hitting an artery, he's an expert marksman, shoots him in the leg to disable him so that Reed can handcuff him behind his back, get him in a transport. [00:20:40] Speaker 03: Is that a clearly established violation even though he's acting in a paramedical capacity? [00:20:46] Speaker 05: So are you asking if paramedic Reed shot [00:20:50] Speaker 03: No, I'm not. [00:20:50] Speaker 03: I'm asking if Fisher, you're representing Fisher. [00:20:53] Speaker 05: Or excuse me, paramedic Fisher shot. [00:20:54] Speaker 03: You mentioned, I'm sorry, I think we're getting the... Yeah, I'm saying if... Your whole point is that Fisher's just trying to help Reed... Correct. [00:21:03] Speaker 03: ...get this guy. [00:21:05] Speaker 03: Right. [00:21:05] Speaker 03: And so what if Fisher says, okay, well, I got to do something to help my buddy. [00:21:09] Speaker 03: I'm going to shoot him in the leg, make sure don't hit an artery, and then [00:21:18] Speaker 03: Reid is able to, okay, well, he's on the ground. [00:21:22] Speaker 03: He's, you know, bleeding from this gunshot that your client inflicted. [00:21:29] Speaker 03: Is that a, can we construe the allegations of the convoy to say that that is a clearly established violation of the Fourth Amendment, even if Fisher is acting in a purely paramedical capacity not to effect your own arrest, but to facilitate Officer Reid's ability to transport [00:21:48] Speaker 03: the gentleman to get help. [00:21:52] Speaker 05: So that question goes to the function-dependent test, which has essentially been adopted by at least five other circuit courts of appeals, or at least adopted by some and acknowledged by others, stemming from the Sixth Circuit opinion in Pete. [00:22:07] Speaker 05: And so in that situation, essentially what you'd have to be looking at with respect to paramedic Fisher's qualified immunity is what function was he undertaking at that moment. [00:22:16] Speaker 05: What was he attempting to do? [00:22:18] Speaker 05: And there are no allegations in the complaint to suggest that paramedic Fisher had pointed a weapon or even carried a weapon because he was a paramedic. [00:22:26] Speaker 03: I think that's why I called it. [00:22:28] Speaker 03: I mean, I'm not trying to make fun or anything. [00:22:30] Speaker 03: Right. [00:22:31] Speaker 03: I mean, I know that. [00:22:34] Speaker 03: And so I'm just trying to ask, let's say hypothetical. [00:22:38] Speaker 03: We'll say it's a hypothetical question. [00:22:40] Speaker 03: Would you say that is a clearly established violation? [00:22:44] Speaker 03: Ours is that case, and so it's different? [00:22:47] Speaker 03: Or would you say that that would be a clearly established violation? [00:22:51] Speaker 05: Well, in that situation, I think what you're looking more at is the force used by the officer to subdue the individual. [00:22:57] Speaker 05: That, I think, is a separate question. [00:22:59] Speaker 05: That goes to objective reasonableness. [00:23:00] Speaker 05: The separate question is, was a seizure effectuated? [00:23:03] Speaker 05: And to find the answer to that question, what you need to look at is the function-dependent test. [00:23:08] Speaker 05: What was the function? [00:23:10] Speaker 05: that the paramedic or the officer were attempting to achieve. [00:23:13] Speaker 03: Let's say the function is exactly the function that you were attributing to Fisher in this case. [00:23:19] Speaker 03: The function was not to effectuate a seizure or an arrest. [00:23:24] Speaker 03: It was to facilitate your co-defendant's ability to handcuff the gentleman behind his back to transport him to get help in a purely paramedical capacity. [00:23:37] Speaker 03: That was his function. [00:23:39] Speaker 03: Was that a clearly established violation of the Fourth Amendment? [00:23:41] Speaker 05: It would not be, Your Honor, based on the totality of the decisions from the Fifth, Sixth, Seventh, Eighth, and Ninth Circuit Courts of Appeals that have looked specifically at these similar circumstances when paramedics are involved, sometimes in cooperation with officers and sometimes not. [00:23:55] Speaker 03: What if he says, you know, he's going to kill somebody, I'm an expert marksman, Mr. Fisher says, [00:24:05] Speaker 03: I'm going to shoot him in the heart. [00:24:06] Speaker 03: I'm going to try to kill him. [00:24:07] Speaker 03: He kills him. [00:24:09] Speaker 03: He's not trying to see, you know, effectuate an arrest. [00:24:15] Speaker 03: What he's really trying is to remove the guy out of harm's way so that he doesn't hit a pedestrian or hit a car. [00:24:23] Speaker 03: Now, has he, can a reasonable fact finder view that as a violation of a clearly established right in the court's amendment? [00:24:32] Speaker 03: It seems like you're staking out an [00:24:34] Speaker 03: extraordinary, extraordinary position. [00:24:37] Speaker 03: And I'm just trying to make sure if you're saying that it doesn't matter what Fisher does, if he's trying to tackle him, if he's trying to inflict blood, if he's trying to kill him, it doesn't matter. [00:24:50] Speaker 03: As long as he's saying, I'm a paramedic, I can do whatever the heck I want, I can kill a guy because I'm doing it as a paramedic. [00:24:58] Speaker 03: I'm not doing it as a law enforcement officer. [00:25:01] Speaker 03: And that can never be a fairly established violation because [00:25:04] Speaker 03: We have never had a precedent with such a remarkable position. [00:25:11] Speaker 03: Nobody's ever argued that. [00:25:14] Speaker 03: And so of course, we're never going to have a precedent saying such an extraordinary thing, reflecting such an extraordinary position. [00:25:22] Speaker 03: How in the world can we say that it's not a clearly established violation to shoot a guy in order to put handcuffs behind his back when he's standing in the treeline? [00:25:34] Speaker 03: Near this very seldom traveled road. [00:25:40] Speaker 03: I mean, wow. [00:25:41] Speaker 05: So Judge, I apologize. [00:25:43] Speaker 05: I may have misunderstood your hypothetical. [00:25:45] Speaker 05: I thought that you meant that Officer Reed, the law enforcement officer, shot the individual to subdue and then paramedic Fisher. [00:25:51] Speaker 03: Leave this client out of it. [00:25:53] Speaker 05: OK. [00:25:53] Speaker 03: All right. [00:25:54] Speaker 03: So I will concede your honor. [00:25:55] Speaker 03: We're interrogating him when he's up here. [00:25:57] Speaker 03: I'm interrogating you. [00:25:58] Speaker 03: OK. [00:25:59] Speaker 03: All right. [00:25:59] Speaker 03: So I will concede about your client. [00:26:02] Speaker 03: I'm saying. [00:26:04] Speaker 03: All Reid is doing, I don't think anybody questions, he's trying to handcuff the guy behind his back. [00:26:08] Speaker 03: Correct. [00:26:09] Speaker 03: It's your client that goes and decides to do a tackle that would probably trigger a 15-yard personal foul if he was a football game. [00:26:20] Speaker 03: But I'm talking about your client. [00:26:21] Speaker 03: I'm not talking about Reid. [00:26:23] Speaker 03: Reid's just trying to handcuff the guy. [00:26:25] Speaker 03: It's your client that I'm saying tries to shoot the guy in the leg. [00:26:30] Speaker 03: to avoid an ornery, and now you're saying that's not a clearly established violation, probably not even a violation. [00:26:36] Speaker 03: So I'm not saying, OK, well, let's take it one step further. [00:26:39] Speaker 03: Let's just say Mr. Fisher kills the guy, because God forbid he could walk into traffic and hurt a pedestrian or another driver. [00:26:50] Speaker 03: Would that constitute a clearly established violation? [00:26:54] Speaker 05: I concede, Your Honor, that if paramedic Fisher, as a paramedic, used a firearm to shoot [00:26:59] Speaker 05: someone who was fleeing for the purpose of providing medical treatment, that potentially that would be a clearly egregious example that could overcome qualified immunity. [00:27:08] Speaker 03: I concede that. [00:27:09] Speaker 03: And so now, how do we draw, how do we write an opinion saying, OK, well, if you shoot a guy to avoid an artery, that's one thing. [00:27:19] Speaker 03: But if you tackle someone above the waist causing the guy to fall back and then stay on him, [00:27:29] Speaker 03: You know, when he is, according to the allegations that we have to credit, you know, saying, I can't breathe, how then do we draw a line between that above-the-waist tackle staying on the guy so that Reid can then handcuff the gentleman. [00:27:49] Speaker 03: How do we draw a line saying, that's not a clearly established violation, but if he shot a guy in the artery, that would be a clearly established violation? [00:27:58] Speaker 03: We don't have cases on either point, but I think you're acknowledging that nobody would think that that was constitutional to shoot a guy. [00:28:08] Speaker 03: Well, why isn't it the same effect if you say you're tackling a guy above the waist and then staying on him after he's saying that I can't breathe? [00:28:19] Speaker 05: Well, in this case, Your Honor, you don't need to engage in that extreme line drawing for purposes of paramedic Fisher's qualified immunity. [00:28:25] Speaker 05: You need only look at the other circuit court opinions that have dealt with this specific issue, two of which have specifically dealt with positional asphyxia, effectuated by either a paramedic, an officer, or a combination of both. [00:28:37] Speaker 05: The Pete decision dealt with those same exact facts. [00:28:40] Speaker 05: The most recent decision from the Ninth Circuit, from 2024, the Perez decision, which is in the briefing, dealt also with positional asphyxia [00:28:47] Speaker 05: through a combination of restraint that was employed by the paramedic and the officers who were on scene. [00:28:53] Speaker 05: And the Ninth Circuit said, look, no clearly established violation here by these individuals because there's no clearly established seizure because it's clear that the officers and paramedic were there to [00:29:04] Speaker 05: transport this guy for medical purposes, not to place him under arrest. [00:29:07] Speaker 00: Of course that's not clear here, at least not from this stage of the litigation. [00:29:12] Speaker 00: We've got some pretty objective looking facts asserted here, including the officer's own statements about what he was doing and why he was doing it. [00:29:20] Speaker 00: that would indicate his intent was to restrain. [00:29:24] Speaker 00: And that's what makes it a seizure. [00:29:26] Speaker 00: It doesn't have to be a law enforcement officer. [00:29:29] Speaker 00: His intent must be to restrain, not an intent to even restrain to provide medical care. [00:29:36] Speaker 00: Simply an intent to restrain is a seizure. [00:29:39] Speaker 00: And there is a case law supporting that. [00:29:41] Speaker 00: And we do have objective facts here suggesting [00:29:44] Speaker 00: He literally was all about helping the officer who's chasing after this guy. [00:29:50] Speaker 00: And he says he tackled him. [00:29:54] Speaker 00: He says he didn't know what he was supposed to do. [00:29:57] Speaker 00: He'd never done anything like this before. [00:29:58] Speaker 00: This is the first time he'd taken anybody down. [00:30:01] Speaker 00: He lost in between a grove of trees. [00:30:05] Speaker 00: You know, there's more. [00:30:06] Speaker 00: But I mean, we've got this guy's own statements. [00:30:09] Speaker 00: I don't know why at this stage. [00:30:13] Speaker 00: I understand that you could develop in discovery something more, that he was taking him down to provide him with medical care, although it doesn't appear there's any reason to take [00:30:24] Speaker 00: Providing with medical care right now, but and even talked about oh I need to provide him with care And then watched him not breathe and didn't provide him with care for ten minutes So you've got enough facts to get past the motion to dismiss on the seizure and [00:30:39] Speaker 00: I guess I don't understand how Taurus supports you. [00:30:42] Speaker 00: There wasn't an arrest in that case, and they did talk about an arrest, but the court there applied and extended the common law rule, which doesn't require an arrest for seizure. [00:30:52] Speaker 00: You don't have to have an arrest. [00:30:53] Speaker 00: You don't even have to have necessarily an intent to arrest. [00:30:55] Speaker 00: It's about restraining their liberty and whether the intent of the individual [00:31:01] Speaker 00: not just whether they're a law enforcement officer or not, is to restrain. [00:31:06] Speaker 00: And that's probably a fact question here, isn't it? [00:31:10] Speaker 05: Well, respectfully, Your Honor, Torres versus Madrid was expressly limited to apprehensions. [00:31:14] Speaker 05: The opinion made that expressly clear. [00:31:16] Speaker 00: But they talked all about the common law, and they adopted and extended and approved and extended the common law, which does not require, generally, an arrest. [00:31:25] Speaker 00: No question in that case, they talked about it. [00:31:27] Speaker 00: There was no formal arrest in that case. [00:31:29] Speaker 00: But the point being, [00:31:30] Speaker 00: It's not required. [00:31:32] Speaker 00: And just accepting that, I'm not sure how we can at this point judge what this individual's intent was, particularly where we have more than we normally would have, which is even some statements from him about what happened. [00:31:49] Speaker 05: Quickly, Your Honor, with respect to the statements, [00:31:51] Speaker 05: What's key with respect to an arrest is you always look at it from an objective standard. [00:31:55] Speaker 05: So whether Paramedic Fisher believed that Officer Reed was attempting to effectuate an arrest is irrelevant. [00:32:03] Speaker 00: But what about the circumstances? [00:32:05] Speaker 00: That's a good point. [00:32:05] Speaker 00: That's a good point. [00:32:06] Speaker 00: What about the circumstances here where he's chasing after this guy and jumping on him and hanging on to him in order for the officer to handcuff him? [00:32:20] Speaker 05: Correct, so that he could be medically transported. [00:32:22] Speaker 05: And the allegations in the complaint actually clarify and specify what the purpose of the crisis response team was. [00:32:28] Speaker 05: It was there to provide emergency treatment and counseling. [00:32:31] Speaker 00: Well, they didn't know until they got there what treatment was needed. [00:32:34] Speaker 05: Correct, but there's a reason why a crisis response team was called to the situation and not just a SWAT team. [00:32:39] Speaker 00: So the fact that that's the reason that they go there, you're saying it doesn't make any difference then what actually happens or what their intent might be at that moment. [00:32:51] Speaker 00: We can assume that because it was this crisis response team that they were eventually going to transport this person for [00:32:59] Speaker 05: No, we don't have to assume anything. [00:33:03] Speaker 05: The allegations of the complaint do not indicate that they were there to arrest Mr. Dismay. [00:33:12] Speaker 00: If someone does something during the course of this [00:33:18] Speaker 00: whatever you want to call it, it's not an investigation, but occurring in the course of this encounter, certainly it could change to an arrest situation. [00:33:25] Speaker 00: And this person was, yeah, he was running around in traffic and they were trying to grab him and they were running around him back and forth and he went back out. [00:33:34] Speaker 00: And to me it's probably more at this point more about safety, restraining him for his own safety as well as perhaps, you know, people out there driving their cars on the street. [00:33:47] Speaker 00: And maybe that's what it was, but it's not necessarily at that point to administer medical care. [00:33:56] Speaker 05: Well, it was a combination of issues. [00:33:58] Speaker 05: Safety for the public, certainly Mr. Dismay's well-being, which was the whole reason they were there trying to restrain him so that he could be transported to the hospital for treatment. [00:34:07] Speaker 00: Well, I'm saying at that very moment that the restraint occurs, and under the setting that it occurred, [00:34:13] Speaker 00: Not necessarily what they might have intended to find or what they thought they were going to find or what they thought they were going to do, but what happened in that setting. [00:34:20] Speaker 00: There may be a question of fact as to whether, you know, what the intent was. [00:34:25] Speaker 05: Right. [00:34:26] Speaker 05: But at the end of the day, it ultimately comes down to was there a clearly established seizure? [00:34:30] Speaker 00: Right. [00:34:30] Speaker 00: That's the next question. [00:34:32] Speaker 05: Was there a clearly established violation here by either paramedic Fisher or Officer Reed? [00:34:37] Speaker 05: And our position as outlined in the brief is that there definitely was not. [00:34:41] Speaker 05: Thank you. [00:34:41] Speaker 05: Any other questions? [00:34:44] Speaker 03: OK. [00:34:45] Speaker 03: Thank you. [00:34:49] Speaker 03: All your time is exhausted, but we're going to give you one minute. [00:34:52] Speaker 03: Thank you, Your Honor. [00:34:56] Speaker 04: I can't say I wasn't warned, Your Honor. [00:34:59] Speaker 04: Your Honor, I'm going to be very brief. [00:35:01] Speaker 04: I'm going to go directly to Judge Moritz. [00:35:04] Speaker 00: Yeah, I was hoping you would. [00:35:07] Speaker 04: If you look at the actual opening brief, the intervening is [00:35:12] Speaker 04: mentioned twice, two times. [00:35:15] Speaker 04: One, in the jurisdictional statement, and second, just in talking about what some of the claims were. [00:35:19] Speaker 04: Otherwise, there is absolutely no direction to that argument. [00:35:24] Speaker 04: We did make the argument that it was waived as well, I believe, on page 26 of the brief. [00:35:28] Speaker 00: Yeah, I saw that. [00:35:29] Speaker 04: I saw that. [00:35:30] Speaker 04: And there's a footnote with some cases cited. [00:35:33] Speaker 04: So we do believe that it has been waived. [00:35:35] Speaker 04: Even if you don't, then I think the [00:35:38] Speaker 00: It has changed, though. [00:35:39] Speaker 00: It has morphed into a 14th Amendment claim. [00:35:43] Speaker 04: Which was not included in the complaint. [00:35:45] Speaker 00: Not included in the complaint. [00:35:46] Speaker 04: And we also cite cases that you can't bring it up now, and there's some 10-circuit authority on that. [00:35:52] Speaker 04: I would use the last six seconds that I have to emphasize the second prong of qualified immunity. [00:35:59] Speaker 04: And there's four, Judge, [00:36:02] Speaker 04: Judge Sweeney emphasized the second prong, which requires that there be an observation of the officer of another officer's use of excessive force, which is not a paramedic. [00:36:18] Speaker 04: And there is a long line of cases which emphasizes that specific second provision in the elements. [00:36:25] Speaker 04: And we would have to substantively change the elements of [00:36:28] Speaker 04: the failure to intervene to be able to fit this case, this round case, into a square peg that plaintiff is trying to force it in. [00:36:40] Speaker 04: I would otherwise stand on my briefs for the remainder of my argument. [00:36:44] Speaker 03: Okay. [00:36:45] Speaker 03: Thank you very much. [00:36:46] Speaker 03: This matter will be submitted. [00:36:48] Speaker 03: Thank you both, all three counsel. [00:36:51] Speaker 03: As previously said, I thought the briefing and the advocacy was excellent. [00:36:56] Speaker 03: We really appreciate it. [00:36:58] Speaker 03: Batter submitted.