[00:00:01] Speaker 03: Case number 15-5216, Pamela Taylor, Appellant vs. United States of America. [00:00:07] Speaker 03: Mr. Awinogay for the Appellant, Mr. Kelly for the Appellate. [00:00:59] Speaker 00: Good morning, Your Honours. [00:01:00] Speaker 00: May it please the Court, Charles Ioannouge on behalf of the Appellate. [00:01:06] Speaker 00: You know, the issue before the Court in this case is whether Officer Clark was privileged in the assault of Miss Pamela Taylor on March 17th of 2010. [00:01:20] Speaker 00: I will address the court's finding as to the assault claim. [00:01:25] Speaker 00: I mean, as to the battery claim before dealing with the assault claim. [00:01:30] Speaker 00: With respect to the battery claim, the court found that Ms. [00:01:34] Speaker 00: Pamela Taylor was assaulted. [00:01:36] Speaker 00: The issue became whether Officer Clark was privileged in assaulting Ms. [00:01:43] Speaker 00: Taylor. [00:01:44] Speaker 00: In doing that analysis, [00:01:47] Speaker 00: It should be viewed from the perspective of an objective officer at the scene based on the facts and circumstances confronting the officer, based on the facts of the case and as found by the judge. [00:02:01] Speaker 00: When Officer Clark started interacting with Miss Pamela Taylor, the facts and circumstances confronting him were simple and limited. [00:02:10] Speaker 00: One, Miss Pamela Taylor was talking to another gentleman, an inmate. [00:02:17] Speaker 00: He was told by Officer Clark to stop talking. [00:02:22] Speaker 00: Based on the facts found by the judge, Miss Taylor did not stop. [00:02:30] Speaker 00: Apparently, in talking to Officer Clark, Ms. [00:02:35] Speaker 00: Taylor told Officer Clark that he will not stop talking. [00:02:41] Speaker 00: And in doing that, apparently her hand, based on the finding, touched the face. [00:02:49] Speaker 00: of the officer. [00:02:50] Speaker 00: There was no testimony that Miss Taylor attacked Officer Clark. [00:02:55] Speaker 00: There was no testimony that Miss Taylor hit Officer Clark. [00:03:00] Speaker 00: When that happened, when that incidental contact happened, Officer Clark held the wrist of Miss Taylor. [00:03:10] Speaker 00: There was no testimony that Miss Taylor was resisting arrest. [00:03:13] Speaker 00: There was no testimony that she engaged in any action. [00:03:16] Speaker 00: What did Officer Clark do? [00:03:20] Speaker 00: Officer Clark pushed down Miss Taylor's hand. [00:03:24] Speaker 00: If she was resisting arrest, or if Officer Taylor wanted to restrain Miss Taylor, when he was holding her hand, he could have done that. [00:03:36] Speaker 00: He could have restrained her at that point. [00:03:39] Speaker 00: He did not do that. [00:03:40] Speaker 00: What did Officer Clark do? [00:03:41] Speaker 00: He said, if your hand touches my face again, I'm going to put you to the ground. [00:03:47] Speaker 00: There was no testimony about any command that turned around, let's put the waste restraint on incident of that nature. [00:03:53] Speaker 00: Apparently, based on the facts found by the judge, Ms. [00:03:57] Speaker 00: Taylor, in talking to Officer Clark that she will not be put down, her hand again, accidentally, is taken as proven, touched Officer Clark's face. [00:04:12] Speaker 01: And that- Why do you say accidentally? [00:04:14] Speaker 01: Because the finding of fact on [00:04:16] Speaker 01: I guess it's paragraph 29. [00:04:21] Speaker 01: It's after Officer Clark said, well, he warned her to keep hands out of his face, and then informed her that if she did not comply, he would place her on the ground. [00:04:30] Speaker 01: The finding of fact from the district court is that plaintiff again raised her hands towards Officer Clark's face, hid his glasses, and stated, I'm not going to be quiet, and you're not going to place me on the ground. [00:04:40] Speaker 01: Okay. [00:04:42] Speaker 00: If you read the language of that finding, you raised her hand. [00:04:45] Speaker 00: It wasn't said, [00:04:47] Speaker 00: attacking or trying to hit. [00:04:49] Speaker 00: If you also go to the left, to the next line, I believe that will be, that will be paragraph. [00:04:58] Speaker 02: Well, the district court said, excuse me, hit his glasses. [00:05:02] Speaker 00: So is your argument here that there was just clear error in the district court's fact findings or that the district court erred in applying the law enforcement privilege? [00:05:23] Speaker 00: You know, both. [00:05:24] Speaker 00: There's clear error in the cross-factual finding and there's also error in the application of the facts to the law. [00:05:32] Speaker 00: Because given what was confronting officer Clark, there was no basis to use that amount of force to do a leg sweep. [00:05:41] Speaker 00: What was confronting officer Clark? [00:05:43] Speaker 00: Officer Clark was a 110 pound, five feet, one inch lady, a young 21 year old girl, and a 295 pound male. [00:05:54] Speaker 01: So just to set the factual context. [00:05:58] Speaker 01: What he testified was, and this was at Joint Appendix 180, she attempted to strike my eyes, but my glasses were in the way. [00:06:06] Speaker 01: That sounds like it's not true that there's no testimony that there was an intentional effort to hit. [00:06:13] Speaker 01: It sounds like there was an effort, at least according to his testimony, which the district court then credits in its findings. [00:06:21] Speaker 01: she attempted to strike my eyes, this is at the top of page 180, but my glasses were in the way, and that's why she ended up hitting the glasses. [00:06:30] Speaker 01: So you were getting to the legal argument that given the circumstances that use of force couldn't be justified, but just in terms of understanding the factual predicate against we judge whether the use of force was justified, [00:06:42] Speaker 01: It's a circumstance in which there was an attempt to strike, and there was a hitting of the glasses. [00:06:47] Speaker 01: And then you might have an argument that, notwithstanding that, as a matter of law, the nature of the response was excessive. [00:06:54] Speaker 00: OK. [00:06:55] Speaker 00: I will draw the course attention to just appending 200 page 200. [00:07:03] Speaker 00: Actually, what officers have flagged at least paragraph 11 to 12? [00:07:08] Speaker 00: why Officer Clark put Miss Pamela Clark to the floor. [00:07:13] Speaker 00: Remember, after the incident, Officer Clark wrote a report. [00:07:17] Speaker 00: There was nothing in the report about Miss Pamela Clark touching his face. [00:07:24] Speaker 00: That only came up by trial and justification for putting her on the ground. [00:07:28] Speaker 00: If the court reads Appendix J, Appendix 200, from 11 to 16, it clearly shows that Officer Clark put Ms. [00:07:36] Speaker 00: Clark to the ground because she refused talking. [00:07:40] Speaker 00: If you read that, it's clear. [00:07:42] Speaker 00: The first time about touching his face, and even in the judge's opinion, the judge did refer to that fact. [00:07:49] Speaker 00: I would rather cause attention to where Judge K [00:07:54] Speaker 00: made mention that officer Clark did not put in his report. [00:07:59] Speaker 00: that he was hit in the face by Ms. [00:08:02] Speaker 00: Taylor. [00:08:02] Speaker 03: So it seems that there was some, you've pointed to in your briefing, some conflicting evidence about whether there was contact made or whether the hands just came toward the face. [00:08:13] Speaker 03: And it seems that the thing that Judge Kay's fact-finding emphasizes is that there was an advance toward or to the eyes, and that that's what he was reacting to. [00:08:27] Speaker 00: OK, you're not. [00:08:28] Speaker 03: And it's difficult, given the testimony that is in the record, some of which refers to touching and other of which doesn't. [00:08:36] Speaker 03: It's difficult to conclude that it was clearly erroneous for Judge Kay to make the fact finding that Judge Shunras appointed to. [00:08:45] Speaker 00: OK, you're not. [00:08:46] Speaker 00: Even if the court does not find it clearly erroneous, if we apply the fact [00:08:55] Speaker 00: to the law as to whether the officer was privileged in doing a leg sweep on a 110-pound female that had leg shackles on. [00:09:07] Speaker 00: It was clearly erroneous because he had two occasions to restrain her, but did not. [00:09:15] Speaker 00: The first time he held her hand, he did not restrain her. [00:09:23] Speaker 00: He did not even tell [00:09:25] Speaker 00: had to turn around, let me restrain you. [00:09:27] Speaker 03: Let me ask you, as I read the District of Columbia cases, it is a requirement for an officer to be privileged that he actually believed that the force he used was reasonable and that it was, objectively speaking, reasonable under the circumstances. [00:09:49] Speaker 03: The district judge did not make a finding as to the officer's actual belief. [00:09:58] Speaker 03: Did you preserve that issue? [00:09:59] Speaker 03: Did you raise that issue in the trial court? [00:10:05] Speaker 03: So there's two aspects of it. [00:10:06] Speaker 03: The one aspect is the officer's actual belief, and the other is the reasonableness of it under the District of Columbia privilege. [00:10:21] Speaker 03: or is that in the case as far as you're concerned? [00:10:29] Speaker 00: You know, I believe there was no finding by the judge as to what the officer believed. [00:10:35] Speaker 00: I believe the cost analysis went straight to what an objective officer— But the question is, did you raise that issue about subjective— [00:10:43] Speaker 01: belief as opposed to the object of heart. [00:10:47] Speaker 01: We'll have to review the record. [00:10:49] Speaker 03: I think in your conclusions of law you say that police officer has a qualified privilege provided that the means employer not in excess of those which the actor reasonably believes to be necessary. [00:11:03] Speaker 03: So there has to be a belief, an actual belief as well as that a person in that position would believe [00:11:11] Speaker 03: And that's in the first paragraph of your conclusions of law. [00:11:14] Speaker 03: So that's a part that we don't have a finding from Judge Kaye on that. [00:11:19] Speaker 01: That's correct, Your Honor. [00:11:21] Speaker 01: And did you raise that on appeal? [00:11:23] Speaker 01: I don't remember seeing that argument in your appellate brief. [00:11:27] Speaker 00: Your Honor, I believe we raised the issue with respect to that. [00:11:42] Speaker 03: Let me ask you maybe, unless you have it right at your fingertips, it might be something you want to say for rebuttal, but there's also a question, and I'd be interested in your views, about whose burden is it under District of Columbia law to establish the privilege? [00:11:57] Speaker 03: Is it the plaintiff's burden to say that the conduct is unprivileged, or is it the district's [00:12:02] Speaker 03: burden or the individual's burden, the officer's burden to show that there's a privilege. [00:12:07] Speaker 00: You know, I believe it is the officer's burden to show that there was privilege. [00:12:13] Speaker 00: Or that there was privilege. [00:12:14] Speaker 00: I'm sorry, I didn't get it. [00:12:16] Speaker 00: I believe it was the officer's burden to show that the contact was privileged because we presented evidence as to the excessiveness of the use of force. [00:12:25] Speaker 01: Do you have a case for that? [00:12:26] Speaker 01: Because I looked at the DC cases, and I thought that DC had declined to answer that question of who has the burden. [00:12:33] Speaker 00: You know, that's why it's our position, because our body needs to show that the force used was excessive. [00:12:39] Speaker 00: We've presented that position. [00:12:41] Speaker 00: If it is the defender's position that it was privileged, that's supposed to provide some evidence to support that privilege, then we've established that the force used was excessive. [00:12:53] Speaker 00: It was so excessive that even the judge in his findings commented about the injuries to Ms. [00:13:01] Speaker 00: Permanentello, and even hinted that a less alternative means could have been used, but he would not do a 2020 vision. [00:13:09] Speaker 00: But in this case, there's no need for a 2020 vision. [00:13:12] Speaker 00: Even though the argument surrounds around that Ms. [00:13:15] Speaker 00: Taylor was unable to be restrained, but the facts does not support it. [00:13:19] Speaker 00: The fact shows that Ms. [00:13:21] Speaker 00: Taylor could have been restrained. [00:13:22] Speaker 00: All she was doing was talking. [00:13:24] Speaker 00: He had her hand on two occasions and did not restrain her. [00:13:27] Speaker 00: And it's important for the court to know that the first time Ms. [00:13:32] Speaker 00: Officer Clark said that he would put her to the ground was when she refused to stop talking. [00:13:40] Speaker 00: And that was when he said, if you don't stop talking, I will put you to the ground. [00:13:44] Speaker 00: So the purpose of putting her to the ground wasn't to restrain her. [00:13:48] Speaker 00: There was no dangerous condition on that day. [00:13:50] Speaker 00: The officer made, I mean, the trial court misled about the cell block being a dangerous place. [00:13:56] Speaker 00: But on that day, what officer, the clerk, was confronting was three human limits. [00:14:02] Speaker 00: A normal day at the cell block, there was no heightened security, like in, [00:14:09] Speaker 00: like in Wardlaw or in Scott, there was nothing happening when Officer Clark confronted Miss Taylor, apart from her talking in the cell block, and refused to stop. [00:14:23] Speaker 01: On that basis... Well, and that she hit him with, in the, she attempted to hit him in the eye, but she hit his glasses, and that he perceived that she wanted to fight. [00:14:32] Speaker 01: Those are the findings of fact. [00:14:35] Speaker 00: That may be the final, but I believe it's inconsistent with the testimony. [00:14:40] Speaker 00: For example, if Ms. [00:14:42] Speaker 00: Taylor assaulted or battered Officer Clark, more than likely, she would have been charmed as former officer. [00:14:53] Speaker 00: Every person that testified, even Officer Kent, made it clear that she saw Ms. [00:14:59] Speaker 00: Taylor talking with her hands all over the place. [00:15:03] Speaker 00: Any touching of Officer [00:15:06] Speaker 00: It may be the final, but it's inconsistent with the testimony that was presented. [00:15:15] Speaker 00: Mr. Clark did not specifically state, Ms. [00:15:22] Speaker 00: Taylor assaulted me. [00:15:23] Speaker 00: Ms. [00:15:23] Speaker 00: Taylor hit me. [00:15:25] Speaker 00: It was her intention to hit me. [00:15:30] Speaker 02: Was it enough under the test to say that she was trying to hit me, or does he actually have to show that he felt threatened at some level, that he felt it was necessary to respond with the force that he did? [00:15:57] Speaker 00: Yes, he was supposed to show that he was threatened and he was in fear of Miss Taylor that made her to use the font that she used. [00:16:07] Speaker 00: But the testimony appeared that she was trying to restrain Miss Taylor. [00:16:14] Speaker 00: but which is inconsistent with his own testimony in the record that Ms. [00:16:21] Speaker 00: Taylor refused to stop talking and he put her to the ground. [00:16:26] Speaker 02: And how do we review the district court's determination that the use of force was reasonable? [00:16:33] Speaker 02: Was what a reasonable officer would have? [00:16:36] Speaker 02: that a reasonable officer could have used this technique. [00:16:42] Speaker 02: How do we review that? [00:16:44] Speaker 02: Is that something we reviewed de novo? [00:16:45] Speaker 02: Is that something we review for clear? [00:16:48] Speaker 02: Is that a factual or a legal determination? [00:16:50] Speaker 02: The reasonableness of it, the objective reasonableness of the conduct. [00:16:56] Speaker 00: The objective reasonableness of it should be reviewed as opposed to the question of reviewing de novo for the simple fact [00:17:06] Speaker 00: that the only testimony regarding the leg sweep was, is non-lethal. [00:17:13] Speaker 00: It was taught to us in the academy. [00:17:16] Speaker 00: For the court to infer because it was taught in the academy, then it can be used on a £100 female without [00:17:25] Speaker 00: put it into consideration, the kind of damage. [00:17:28] Speaker 02: So that's why there's a question about the standard review. [00:17:30] Speaker 02: It sounds like what your position is. [00:17:31] Speaker 02: You can't just say in the abstract, this is an objectively reasonable technique to use for some sort of abstract attack. [00:17:38] Speaker 02: What the district court had to do here was to say that it was reasonable in the face of this attack with these facts, given the size disparity and those types of things. [00:17:49] Speaker 00: Yes, Your Honor. [00:17:52] Speaker 00: Thank you. [00:18:13] Speaker 04: Good morning, Your Honors, and may it please the Court. [00:18:15] Speaker 04: My name is Wynn Kelly on behalf of the United States of America. [00:18:19] Speaker 04: I'd like to turn briefly to questions raised by the panel on Officer Clark's subjective beliefs and his interaction with Ms. [00:18:28] Speaker 04: Taylor. [00:18:29] Speaker 04: There is direct testimony in Joint Appendix 164 and 165. [00:18:34] Speaker 04: this case. [00:18:35] Speaker 04: It's a case where officer Clark describes both his fear of Miss Taylor and the specific reasons for it. [00:18:42] Speaker 04: One thing that, um, [00:18:47] Speaker 04: before the court today is that there was a size disparity. [00:18:52] Speaker 04: Officer Clark actually says that informed his fear that this was a person who had been set back. [00:19:00] Speaker 04: She had very little to lose. [00:19:02] Speaker 04: She was refusing to be restrained, and she had struck at him, and therefore he thought she wanted to fight [00:19:08] Speaker 04: this was reasonable. [00:19:12] Speaker 04: This is a place the Superior Court cell block where inmates fight each other and law enforcement every single day. [00:19:20] Speaker 04: This is this was not an unusual occurrence. [00:19:23] Speaker 01: So I think so if the question is. [00:19:25] Speaker 01: Is there a factual foundation for the legal conclusion that it was reasonable to respond? [00:19:32] Speaker 01: That's one thing. [00:19:33] Speaker 01: If the question is, was there a factual foundation as to which it was reasonable to respond in this way, that seems like another question. [00:19:41] Speaker 01: And as has been pointed out this morning, the question is whether objectively and subjectively it was thought necessary to use this type of force. [00:19:52] Speaker 01: And as to that, what's the best testimony? [00:19:55] Speaker 01: that it was necessary to use this type of force. [00:19:57] Speaker 04: Well, so your honor, I think this court must rely on the district court's findings absent clear error, which appellant has not shown clear error. [00:20:07] Speaker 04: Appellant has pointed to no clear error in any of the district court's findings. [00:20:12] Speaker 01: But even as to the district court's findings, the district court has some factual predicate findings. [00:20:15] Speaker 01: And then as to the question of necessity, there's a conclusion. [00:20:19] Speaker 01: And I'm just wondering, what's the evidence that shows that this maneuver, this particular maneuver, which resulted in injury, was necessary? [00:20:30] Speaker 04: Correct, Your Honor. [00:20:30] Speaker 04: So the district court's findings at Joint Appendix 311, paragraph 31, that's the finding that Officer Clark felt that Miss Taylor wanted to fight. [00:20:42] Speaker 04: Two paragraphs prior is the finding about hitting the glasses, as Your Honor [00:20:48] Speaker 04: stated in colloquy with Ms. [00:20:50] Speaker 04: Taylor's counsel, that informed the subjective prong that Officer Clark himself believed that force was necessary. [00:20:58] Speaker 01: So you're right that force, I mean I'm not going to dispute for purposes of this exchange that force was necessary, but I think there's a further question which is whether this type of force was necessary because there's a gradation of responses that an officer could undertake. [00:21:12] Speaker 01: And the question is, and I think under the D.C. [00:21:16] Speaker 01: standards, the question is whether this type of force was necessary and what's the testimony or if there's a factual finding about it. [00:21:24] Speaker 01: that goes to that question, whether this kind of leg sweep maneuver was necessary given the factual circumstances that were found by the district court. [00:21:32] Speaker 01: So two points to that, Your Honor. [00:21:34] Speaker 04: There's testimony about the inherent dangers of the cell block and so the need for force. [00:21:40] Speaker 04: And so that informs the need to quickly gain control of an inmate who is not allowing herself to be placed under control. [00:21:48] Speaker 04: And then the district court's findings as well that [00:21:51] Speaker 04: This is an academy approved technique that is taught at the Federal Law Enforcement Training Center. [00:21:58] Speaker 04: There's testimony also in the record that Officer Clark on that day did not have a taser. [00:22:04] Speaker 04: He did not have a baton. [00:22:05] Speaker 04: Whether those instruments would have been more or less harmful to plaintiff, we don't know. [00:22:11] Speaker 01: He says at 165, I elected to use that maneuver at the bottom of the page because I didn't have a taser or a baton at the time, so I had to use my hands. [00:22:22] Speaker 01: That technique was one in which I could get her on the ground so that I could control her hands. [00:22:28] Speaker 01: But I also could keep myself mobile because I still had other prisoners who were near me. [00:22:32] Speaker 01: So that explains why you would use that technique. [00:22:36] Speaker 01: No taser or baton was available. [00:22:38] Speaker 01: It starts to get there. [00:22:39] Speaker 01: But then there's testimony about other techniques that are use of hands. [00:22:44] Speaker 01: He said I had to use his hands. [00:22:45] Speaker 01: There are other techniques that are use of hands that weren't used, pressure points and things of that nature. [00:22:52] Speaker 01: And that's the question, because those wouldn't have involved [00:22:55] Speaker 01: swiftly putting somebody on the ground in a way that could occasion this kind of injury. [00:23:01] Speaker 04: That's correct, Your Honor. [00:23:02] Speaker 04: There is testimony that there are potential other techniques. [00:23:06] Speaker 04: I believe the Supreme Court has instructed and this Court has followed that [00:23:11] Speaker 04: court should be reluctant to engage in 50-50 hindsight of law enforcement officers when they're engaged in these split-second interactions. [00:23:19] Speaker 04: However, the testimony also showed that those techniques, I believe it was Deputy U.S. [00:23:25] Speaker 04: Marshal Kent who was asked about pressure points and the use of elbows [00:23:32] Speaker 04: She's not an expert witness. [00:23:33] Speaker 04: She was asked about techniques she knew. [00:23:35] Speaker 04: She said they could have been more or less likely to injure Miss Taylor. [00:23:41] Speaker 04: But informing the technique, there was a specific finding by the district court that Ms. [00:23:48] Speaker 04: Taylor was unable to catch her fall. [00:23:50] Speaker 04: The technique used allows for the detainee or inmates hand to be free, hopefully so that he or she catches him or herself. [00:24:03] Speaker 04: That didn't happen. [00:24:04] Speaker 03: Is there any finding other than what you've put [00:24:08] Speaker 03: what you specifically identified to us, that the officer actually believed that this was the force that was no more than necessary. [00:24:19] Speaker 04: as far as a finding by the district court your honor yeah or something you know along those lines that you would rely on for that point there's there's no specific finding by the district court beyond Joint Appendix 311 paragraph 31 Joint Appendix 311 paragraph 29 there's certainly testimony that supports that finding and and since neither [00:24:44] Speaker 04: Correct, Your Honor. [00:24:45] Speaker 04: Those two findings, since neither of those findings has been demonstrated to be clearly erroneous, those inform the conclusion and the inference that Officer Clark subjectively felt he was in peril. [00:25:03] Speaker 02: Well, what about the... I'm on Appendix 317, the very bottom. [00:25:11] Speaker 02: The district courts... I'm worried about the legal test. [00:25:15] Speaker 02: Mr. Court finds that alternative non-lethal maneuvers exist that may have resulted in no or less substantial injuries to plaintiff. [00:25:25] Speaker 02: But he doesn't say that was reasonable. [00:25:27] Speaker 02: He says, I cannot say it was unreasonable to do this one. [00:25:33] Speaker 02: Now, that's not the finding he's supposed to make. [00:25:36] Speaker 02: He is supposed to make. [00:25:42] Speaker 02: cannot say it was unreasonable, even though there were other things that would have resulted in less of an injury. [00:25:47] Speaker 02: How is that an accurate statement and application of the law for the privilege here? [00:25:55] Speaker 04: Two responses, Your Honor. [00:25:56] Speaker 04: I think this is [00:25:58] Speaker 04: bordering dicta informing the legal conclusion that the court makes, it is separate from the express findings of fact that the court makes in the pages prior. [00:26:09] Speaker 02: This is the legal analysis. [00:26:11] Speaker 02: It makes finds facts and then applies the law to those facts. [00:26:14] Speaker 02: I don't think that counts as dicta. [00:26:16] Speaker 02: This is the determination. [00:26:17] Speaker 04: But this is not an express finding of fact that the court makes. [00:26:22] Speaker 03: Right. [00:26:23] Speaker 03: What is your position on whose burden it is? [00:26:27] Speaker 03: Conduct was privileged. [00:26:30] Speaker 04: As Judge Srinivasan stated, the District of Columbia Court of Appeals has punted on this issue several times, as well as whether expert testimony is required. [00:26:41] Speaker 04: The one holding that the District of Columbia Court of Appeals, excuse me, has made is, it seems under etherage that if the government comes forward with an expert on excessive force, then the plaintiff is required to answer. [00:26:58] Speaker 04: But as far as who has the burden, it's silent. [00:27:03] Speaker 04: The record here would support either burden. [00:27:11] Speaker 03: So as I read it, what the District of Columbia has done, courts have done, is say, assuming that the burden is on the government, [00:27:22] Speaker 03: In prior cases, the court thought it was the government had met the burden, so they were just going to act as if it was the government's burden until they were given a case where that would make a difference. [00:27:33] Speaker 03: So it's your view that even assuming, under that standard, assuming the burden is on the government in this case, it's your position that you believe that's met. [00:27:43] Speaker 03: But the government has adequately shown the privilege. [00:27:47] Speaker 04: Yes, Your Honor, while not conceding that we have the burden. [00:27:52] Speaker 03: But just provisionally, that if we follow what the DC Court of Appeals has done and say, you know, we're not saying that this is right, but until we decide otherwise, we're going to functionally operate with it on the government. [00:28:04] Speaker 04: Correct, Your Honor. [00:28:06] Speaker 04: The findings, the facts, and conclusions of law support, as the District of Columbia Court of Appeals has instructed, [00:28:13] Speaker 01: whoever has the burden, the. [00:28:16] Speaker 01: But you don't mean the conclusions of law in this case, because as I read the conclusions of law in this case on page 318, there's a paragraph where the district court says, in light of the fact the undersigned counsel cannot, undersigned, sorry, cannot say that Officer Clark's use of force was so excessive that no reasonable officer could have believed in the lawfulness of his actions, plaintiff has not met her burden in this case. [00:28:37] Speaker 01: So it seems like what the district court did was put the burden on plaintiffs to show with respect to the privilege. [00:28:44] Speaker 04: Well, I believe what the court was saying was plaintiff has not met her burden of proof for battery writ large. [00:28:53] Speaker 04: And then there's an issue within that on whether the force was excessive. [00:29:00] Speaker 04: But I believe that could be open to interpretation. [00:29:04] Speaker 04: But as the District of Columbia Court of Appeals has said, it is possible too that there could be a shifting burden back and forth. [00:29:11] Speaker 04: in that the government comes forward with evidence that the force used was both subjectively and objectively reasonable and then the plaintiff has the burden to show that it was excessive. [00:29:27] Speaker 04: So that could be what the district court meant here is [00:29:32] Speaker 04: that the plaintiff has not sort of pushed the ball back over the line after the government showed that the force was reasonable under the circumstances and therefore privileged. [00:29:42] Speaker 01: The government didn't introduce expert testimony on this, right? [00:29:47] Speaker 01: So when you're saying the government made its showing on this, what are you referring to? [00:29:50] Speaker 01: The government produced evidence that the force was privileged. [00:29:56] Speaker 04: based upon the testimony. [00:29:58] Speaker 04: Under Etheridge, the government's not required to provide expert testimony. [00:30:06] Speaker 04: obviously there was a battery. [00:30:09] Speaker 04: The government is required to assert the law enforcement privilege. [00:30:13] Speaker 04: The government did so. [00:30:14] Speaker 04: The government provided sufficient evidence to support that privilege, and the plaintiff was unable to overcome. [00:30:20] Speaker 01: And when you say it's provided evidence to support that privilege, you mean provided evidence to show that this degree of force was necessary? [00:30:26] Speaker 01: Correct. [00:30:27] Speaker 01: This degree of force was? [00:30:29] Speaker 02: Under these circumstances. [00:30:30] Speaker 04: Correct. [00:30:32] Speaker 02: Can I ask you about the test? [00:30:36] Speaker 02: This determination, I cannot say that it was so excessive that no reasonable officer could have believed in lawfulness. [00:30:45] Speaker 02: Is that the DC immunity test, or are they quoting a constitutional qualified immunity test there? [00:30:55] Speaker 02: I don't see that language in the DC articulation. [00:30:58] Speaker 02: Cannot say, as opposed to affirmatively finding objective and subjective reasonableness. [00:31:06] Speaker 04: And your honor has pointed to the tricky part of this area in that the excessive force analysis in the common law tort of battery cases seems to pick and choose and borrow from the constitutional excessive force cases under the Fourth Amendment and that are section 1983 cases that I believe [00:31:32] Speaker 04: The district court's conclusion there might have been informed by their there is language. [00:31:37] Speaker 02: I was asking you, is that applying the right legal test under DC law as you understand it? [00:31:43] Speaker 04: It's a it might be a [00:31:48] Speaker 04: paraphrasing of language that states that no reasonable officer would have believed the force he used was excessive, which is in the District of Columbia Court of Appeals, which is the same as a reasonable officer. [00:32:03] Speaker 04: It's a slightly different phrasing of the same test. [00:32:08] Speaker 03: Well, it's not. [00:32:09] Speaker 03: I mean, this is and I can understand [00:32:14] Speaker 03: on the legislature judge case part because there is some precedent that cites the Fourth Amendment cases and the D.C. [00:32:21] Speaker 03: cases in a kind of braid, but there is a really quite significant distinction in that the D.C. [00:32:26] Speaker 03: cases do, and the federal constitutional cases do not, require a determination of the officer's subjective belief about what was reasonable under those circumstances. [00:32:38] Speaker 03: And you don't disagree with that. [00:32:41] Speaker 03: That scales. [00:32:43] Speaker 04: I'm sorry, Your Honor. [00:32:47] Speaker 04: The government does not disagree that, yes, the officer's subjective belief is required for the privilege in the battery. [00:32:54] Speaker 04: That is correct. [00:32:54] Speaker 03: Yes. [00:32:55] Speaker 03: And it is the government's burden, at least provisionally, or you're willing to shoulder that burden in this case, because you think you can, to establish that actual belief in the reasonableness of the four suits. [00:33:11] Speaker 04: I see my time is expired. [00:33:16] Speaker 04: First, I do not have the authority to bind the United States government to accepting the burden either way. [00:33:25] Speaker 04: What I was saying is based upon the District of Columbia Court of Appeals instruction that it is unclear of of who has the burden that based based on that landscape, the evidence that the findings of fact here show that [00:33:41] Speaker 04: We provide the government provided sufficient evidence to assert the privilege. [00:33:46] Speaker 04: Whatever the burden is. [00:33:49] Speaker 04: the government has met it, and in this case, has carried it. [00:33:53] Speaker 03: Now, just by hypothesis, and obviously we haven't decided this case yet, but if we were to disagree with you that the evidence is sufficient, and DC has said this is an open question under its law, if this was the case in which it did make a difference, whose burden it was, what course for this court as a procedural matter [00:34:19] Speaker 04: If that were to occur, then perhaps this court could send it to the District of Columbia Court of Appeals for resolution of that issue if it was necessary. [00:34:30] Speaker 04: Based upon the findings of fact, in this case and the conclusions drawn, it does not appear necessary. [00:34:37] Speaker 02: We don't have to do that. [00:34:38] Speaker 02: I mean, there's times when federal courts have to just make their best guess as to how state courts would resolve an open legal question, right? [00:34:47] Speaker 02: We don't have to certify it. [00:34:49] Speaker 02: can make our best guess, our best educated determination. [00:34:53] Speaker 04: That is correct, Your Honor. [00:34:55] Speaker 04: However, the District of Columbia Court of Appeals has had the issue before it specifically and has declined to address it. [00:35:06] Speaker 02: Did the testimony of the officer ever say, when he explained, I did this leg sweep, it would let me get her under control and keep myself in a position of mobility given the other officers there, or the other prisoners there. [00:35:24] Speaker 02: Did the officer ever say that no other technique that was available to me at the time would have sufficed? [00:35:34] Speaker 04: your honor, he did not say that, uh, if I may give sort of a longer answer. [00:35:40] Speaker 04: Uh, what? [00:35:42] Speaker 04: During Officer Clark's testimony, he demonstrated to the court the specific interaction that was occurring at that time. [00:35:50] Speaker 04: The officer's hands are occupied by the waist chain and the handcuffs. [00:35:56] Speaker 04: He is required. [00:35:58] Speaker 04: He must have a compliant inmate to be able to restrain her. [00:36:03] Speaker 04: because his hands are otherwise occupied. [00:36:07] Speaker 04: When she refused to comply and then struck at him, he was forced to take quick action, a technique he could have used. [00:36:17] Speaker 04: And so that was one thing that informed our prior colloquy about [00:36:22] Speaker 04: pressure points or use of an elbow. [00:36:26] Speaker 04: Those really weren't available at that moment because his hands were occupied. [00:36:29] Speaker 04: He had to immediately drop the waist restraints and the handcuffs as he demonstrated to the district court and then quickly gain control of the inmate as quickly as possible. [00:36:41] Speaker 01: So that might be right. [00:36:43] Speaker 01: That might well be right. [00:36:44] Speaker 01: But if there's not testimony to that effect, then how do we know that once he drops what he has in his hands, he can't use one of those other techniques? [00:36:52] Speaker 01: Because then his hands are available to him. [00:36:57] Speaker 04: His testimony was, I needed to gain control of her hands as quickly as possible because I was afraid. [00:37:04] Speaker 04: If the district court or this court begins to engage in a 20-20 hindsight analysis of what potential other techniques were possibly available and what the effects might be, that would seem contrary to the Supreme Court's instructions. [00:37:21] Speaker 02: So 20-20, what are the legal tests? [00:37:22] Speaker 02: The legal tests that we have to find that the officer thought [00:37:26] Speaker 02: this was the force necessary. [00:37:27] Speaker 02: If the officer says and explains why the officer thought that force was necessary, then I get that we as judges can go, well, you know, I don't know. [00:37:35] Speaker 02: Maybe you could have done this, that, or the other. [00:37:36] Speaker 02: But that would be 20-20 hindsight by folks. [00:37:40] Speaker 02: At least I have no experience in handling people in a jail cell holding area. [00:37:46] Speaker 02: But just requiring the officer to explain that the officer made that judgment [00:37:53] Speaker 02: Is that 2020 hindsight, or is that just the legal test we have to apply? [00:37:57] Speaker 04: Well, the officer did testify that he used the minimal force necessary. [00:38:03] Speaker 04: That was not a finding. [00:38:04] Speaker 02: Where did he say that? [00:38:16] Speaker 01: He definitely testified that the force was sufficient, and I think the question is, [00:38:21] Speaker 01: No question, it was sufficient. [00:38:23] Speaker 01: Where is it that it says that it's necessary, that that degree of force is necessary? [00:38:31] Speaker 04: If I could have one minute. [00:38:48] Speaker 04: I may have overstated the testimony. [00:38:50] Speaker 04: I apologize. [00:38:51] Speaker 04: On Joint Appendix 164, he said, I put my right leg in front of her leg, and I did a leg sweep using the minimum amount of force. [00:38:59] Speaker 04: That was one of my techniques. [00:39:01] Speaker 04: That was what I was referring to. [00:39:03] Speaker 01: So I may have overstated the import of that. [00:39:06] Speaker 01: Which I take it means that using the minimum amount of force to execute a leg sweep. [00:39:10] Speaker 01: Correct. [00:39:10] Speaker 01: Yeah. [00:39:10] Speaker 03: I had the impression, and again, I'm no expert, and we don't have expert testimony, but it raises a difficulty for us in the posture that this case comes to us. [00:39:22] Speaker 03: I had the impression that a leg sweep was typically the other way, that you would basically put someone's feet out front and say they'd sit. [00:39:30] Speaker 03: And here it was done so that she fell face forward. [00:39:33] Speaker 03: And we don't know, do we, that this is actually the correctly executed technique, even assuming that this technique as opposed to some other was the minimum force sufficient in the circumstances to get her under control. [00:39:50] Speaker 04: or do we? [00:39:51] Speaker 04: Well, Your Honor, I believe that would be a factual issue. [00:39:57] Speaker 04: The leg sweep, as was described and testified about and actually demonstrated on cross-examination for the district court, it was more of a leg trip in that the officer placed his leg in front of the plaintiff's leg and grabbed her wrist using his leg to trip her. [00:40:20] Speaker 04: her hand was free. [00:40:25] Speaker 04: The technique calls for that hopefully to catch herself as the district court found. [00:40:31] Speaker 04: That did not occur. [00:40:33] Speaker 04: There's no testimony in the record that it was improperly executed or that there was anything wrong with the way the maneuver was executed. [00:40:45] Speaker 03: There's not any testimony, even lay testimony, that was properly executed either. [00:40:49] Speaker 03: this is what I learned, this is the circumstance in which I've used it, and this is why it makes sense. [00:40:57] Speaker 03: Not even lay testimony to that fact, right, in this case. [00:41:00] Speaker 04: Well, Your Honor, there is testimony by Officer Clark that this is a maneuver that I learned at the Academy. [00:41:08] Speaker 04: This is what I used at this point. [00:41:10] Speaker 04: I used the minimal force necessary when using this maneuver. [00:41:16] Speaker 04: And again, he did demonstrate it for the district court, and the district court [00:41:22] Speaker 04: found that you subjectively believed you were in danger. [00:41:28] Speaker 04: This was reasonable because you work in a very dangerous courthouse area where there are people like Ms. [00:41:35] Speaker 04: Taylor whose liberty has been suddenly taken away. [00:41:38] Speaker 04: If you chart the course of her day, her behavior began to escalate in a bizarre fashion. [00:41:47] Speaker 02: I just want to go back. [00:41:48] Speaker 02: I thought part of the technique was the expectation that they would have at least one hand for you to catch themselves with. [00:41:55] Speaker 04: That's correct, Your Honor. [00:41:55] Speaker 02: Okay, well then it has to be forward going because if you throw them backwards, their hand isn't going to catch them. [00:41:59] Speaker 02: So the proper technique would have to be forward going for the hand to even be relevant. [00:42:05] Speaker 04: correct. [00:42:05] Speaker 04: I believe I believe that it's more an issue of nomenclature in that. [00:42:10] Speaker 04: Like I said, it is less of a leg sweep and more of a controlled trip, at least as demonstrated and as as testified about the the detainees legs were not swept from underneath her. [00:42:23] Speaker 04: She was forced forward over the law enforcement officers knee. [00:42:29] Speaker 04: If that does that answer your honor's question? [00:42:35] Speaker 04: If there are no other questions, the government will ask in the district where its judgment be affirmed. [00:42:39] Speaker 01: Thank you, counsel. [00:42:42] Speaker 00: We'll give you two minutes back for a vote. [00:42:46] Speaker 00: You know, on the issue of trying to hold Ms. [00:42:50] Speaker 00: Pamela's hand in order to control her, the officer was holding her hand. [00:42:58] Speaker 00: The electric was not necessary. [00:43:02] Speaker 00: It was unnecessary because the nature of the tactics as described by Officer Clark was to hold the hand, twist it to the back, and push her forward while using the leg to trip her. [00:43:16] Speaker 00: Remember, it's important that she was in leg shape. [00:43:19] Speaker 01: Does that mean that any time an officer gets hit, that what an officer has to do is just hold somebody's hand? [00:43:25] Speaker 00: No. [00:43:26] Speaker 00: That's not what I'm saying. [00:43:27] Speaker 01: There have to be occasions in which an officer is entitled to put somebody on the ground. [00:43:30] Speaker 00: But the officer's testimony, Officer Plaza said that he was trying to get control of her hand. [00:43:38] Speaker 00: So in trying to do that, what he did do is to push her with great force. [00:43:43] Speaker 00: trying to, like, for the judge to find that or to conclude that Ms. [00:43:50] Speaker 00: Taylor was unable to break her fall, is it consistent with the facts or with the testimony of Ms. [00:43:57] Speaker 00: Taylor? [00:43:57] Speaker 03: Well, that's a very difficult question for us on this record. [00:44:00] Speaker 03: I mean, I thought that it was actually quite [00:44:05] Speaker 03: plausible what the officer said that when somebody that small is acting really irrationally in being aggressive toward an officer, you start to think, well, speaking and behaving in a, you know, treating her that she's going to respond to minimal force is more risky. [00:44:25] Speaker 03: She seems [00:44:29] Speaker 03: a little uncontrollable or crazed, and it is scarier to confront a person in that situation. [00:44:35] Speaker 03: There is a need for a somewhat more assertive response, and that just, to the extent that that's what the district judge found, then is it clearly wrong news? [00:44:49] Speaker 00: You know, from the facts of what transpired that day, from the time she came into the cell block, she's been shackled previously twice. [00:44:59] Speaker 00: She did not fight anybody. [00:45:00] Speaker 00: She did not get into a fight. [00:45:02] Speaker 00: All she was doing there was talk. [00:45:04] Speaker 00: There was no evidence or there was no testimony of her being confrontational. [00:45:11] Speaker 00: And it's important to note that the first time Officer Clark spoke to her was when Officer Clark was not even attending to her. [00:45:19] Speaker 00: It was when Officer Clark said, stop talking, shut up. [00:45:23] Speaker 00: And she said, no, you're not going to, I'm not going to shut up. [00:45:27] Speaker 00: So based on what was known to the officer, the officer could not have expected that there would be a fight. [00:45:34] Speaker 00: Irreasonable and objective officer, knowing what we know about Miss Pamela, [00:45:41] Speaker 00: Taylor and her side will not have anticipated that Ms. [00:45:46] Speaker 00: Taylor wanted the fight. [00:45:47] Speaker 03: And there are three other women, all of whom have handcuffs and leg jackals on. [00:45:53] Speaker 03: There's a man who's not in the same area, but through bar or through mesh. [00:46:00] Speaker 00: Who was maybe far away about some yards away. [00:46:04] Speaker 03: But is he free to move at them if he were to be so [00:46:10] Speaker 03: Is he separated by some kind of barrier? [00:46:13] Speaker 00: I believe so, because I believe that I don't know for a fact, but from the testimony I tried, it appeared that he was at a different location, that they were only able to communicate, but not each other. [00:46:26] Speaker 03: Not physically be in the same space. [00:46:27] Speaker 00: Yes. [00:46:27] Speaker 03: And Officer Kent was another officer available within the area where Officer Clark was. [00:46:32] Speaker 00: Yes. [00:46:32] Speaker 00: He was another officer I'd seen about, according to the testimony, six feet away. [00:46:38] Speaker 03: And Officer Kent had free hands, presumably, to help, if needed. [00:46:42] Speaker 00: Yes, Your Honor. [00:46:43] Speaker 03: And weapons, if needed? [00:46:47] Speaker 00: She was set. [00:46:48] Speaker 00: I mean, Miss Stella was set several times. [00:46:51] Speaker 00: Strip said there was no weapon on her, which would have been known to Officer Clark, because he was present at the scene. [00:46:57] Speaker 00: And if there was any confrontation, Officer Kent would have come to the aid of Officer Clark. [00:47:04] Speaker 00: But Officer Kent was sitting down [00:47:07] Speaker 00: watching what was, according to her testimony, she did not observe when, or her report, she did not observe when Ms. [00:47:17] Speaker 00: Pamela Taylor hit the ground or what happened. [00:47:19] Speaker 00: But at trial, she testified separately about seeing Officer Clark putting handcuffs on Ms. [00:47:26] Speaker 00: Taylor. [00:47:26] Speaker 00: But in her report, there was nothing in there about seeing the event that happened because she was blocked [00:47:33] Speaker 00: her vision was left from where she was sitting. [00:47:36] Speaker 00: At trial, she said that she stood up and observed Officer Clark putting handcuffs on Miss Taylor. [00:47:43] Speaker 03: But when the handcuffs- You said that Officer Clark should have been aware that Miss Taylor had been strip searched, but as I read the testimony, he was not- there wasn't testimony that he was aware that was performed by someone else? [00:47:57] Speaker 00: Yes. [00:47:59] Speaker 03: is there testimony that he was aware of that? [00:48:01] Speaker 00: No, there's no testimony, there's no finding. [00:48:06] Speaker 00: If he was unaware of what transpired all day, there was no reason from the point in paragraph 24 of the decision, of the finding of fact, the judge found that the first contact with Miss Taylor was when he told her to shut up. [00:48:22] Speaker 00: If that was the first course, [00:48:24] Speaker 00: first encountered. [00:48:27] Speaker 00: There's nothing that would have made officer Clark believe that the condition was dangerous, the cell block was dangerous, or that Miss Taylor was dangerous in any way. [00:48:39] Speaker 01: Okay. [00:48:40] Speaker 01: Thank you, counsel. [00:48:41] Speaker 01: The case is submitted.