[00:00:02] Speaker 00:
Case number 16-7146, Johnson Hedge Path Appellant versus Amir Rahim, District of Columbia Police Officer, individually and in his official capacity, and Rider, D.C.

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Police Officer, individually and in his official capacity.

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Mr. Scarfano for the appellant, Mr. Shickley for the police.

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May it please the court.

[00:00:25] Speaker 01:
My name is Joseph Scorobono.

[00:00:26] Speaker 01:
I represent Jonathan Hedgepet in a civil suit against Metropolitan Police Department officers Matthew Ryder and Ammar Rahim.

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We are asking the court to reverse the district court's decision granting summary judgment in favor of defendants Rahim and defendant Ryder as to Hedgepet's claim to false arrest and excessive force in violation of 42 USC 1983.

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The record, when viewed in the light most favorable to the planet, does not support directly or by inference that two factual transactions occurred between Mr. Hedgepeth and two separate individuals, tall African American or otherwise.

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Our contention is that

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The incident described by the officers and described by Marcus Lee is the same incident.

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Both officers Rahim and Ryder testified almost uniformly to a continuing series of events that exclude any reference to Marcus Lee, who was on the scene from start to finish.

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Officers Rahim and Officer Rahim and Officer Ryder both describe what they were doing before they encountered Mr. Hedgepeth.

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They described the run-up to that incident, and based on the record before the court, the testimony of Officer Rahim, Officer Ryder, and Marcus Lee, there is no timing that would provide for two separate factual transactions.

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Mr. Scrapano, assuming that we, as we must in the current procedural posture, accept

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the evidence in the record that supports your client and draw all inferences in his favor.

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We nonetheless have testimony of Marcus Lee that the officers sought to arrest Mr. Hedgepath and asked him, grabbed his right hand and asked him for his

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left-hand, and that he was not cooperating, and that it was only then that the officer, Officer Rahim, used the takedown maneuver, and that he did so without any apparent effort to slam Mr. Hedgepat, but just to get him under control, to arrest him.

[00:02:43] Speaker 05:
If we assume that factual scenario, that the one or the two is not material to that, is it?

[00:02:51] Speaker 01:
In terms of the reasonableness of the force used by Defended Officer Rahim.

[00:02:56] Speaker 05:
And then just getting straight to it, my question is how do you distinguish our precedents such as Wardlaw or Oberwetter or other cases in which there's a similar effort with an individual to place them under arrest and some injury, and in this case quite a serious injury, ensues?

[00:03:16] Speaker 01:
I think some of the facts in the run-up to Officer Rahim's decision to use force with Mr. Hedgepeth are distinguishable from the cases that the appellee subsided and that Your Honor references.

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This wasn't a situation where Mr. Hedgepeth was in any way attempting to flee.

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He was, according to Marcus Lee,

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standing and at most the resistance that he offered was not giving his right arm once Officer Rahim already had his left arm and I think that would be distinguishable from an instance like in Scott for example where the defendant tried to escape from the vehicle or in other cases where the opposition is sort of active and oppositional where they pull away

[00:04:02] Speaker 05:
That's why I was asking about, for example, Oberwetter, where you have a woman dancing and listening to her earbuds in the Jefferson Memorial.

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There's not a violence or attempt to flee or that kind of behavior, and there our court found that the force used was not unreasonable.

[00:04:29] Speaker 01:
I think Oberwetter is distinguished because there was no injury that resulted from the plane at the Met.

[00:04:35] Speaker 04:
That's a different question, it seems to me, and here's how I see it as being a different question.

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One question is the maneuver that's used by the police to take down the suspect, your client.

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And given the circumstances, as Judge Pillard says, there's some precedent that suggests the maneuver is permissible given the circumstances.

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And I understand your point on that.

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I'm just going to distinguish the two things.

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The second question is whether smashing his head into the wall, I'll just use that as a shorthand, was an accident or intentional?

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And on that, your argument, I suppose, is that there's at least enough evidence to show that it might have been intentional to get to the jury.

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The district court concluded that it was accidental.

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And on that, the only real evidence we have, since your client can't testify to the events, or the officer who says it was not intentional, and then Lee,

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And then Lee's testimony really hurts you on that, as you're probably aware.

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But I just want you to tell me how we can overcome that, because Lee says his observation of the event is that he does not, and I'm paraphrasing here,

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He did not think the officer was intentionally smashing your client's head into the wall, that it was not, it was in essence an accident.

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How do we deal with that?

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Because that to me is a critical piece of this.

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Was it intentional or was it an accident?

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If it's intentional or there's enough evidence that it was intentional, then you should get to the jury.

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If there's evidence, the only evidence is that it's an accident, then you don't.

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I do agree that there is some testimony from Mr. Lee that does hurt us on this point.

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I believe he says that he believed that it was intentional for the officer to take him to the ground, but not intentional to take him into the window.

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And I guess my response to that would be, based on the nature of the injury, I think a reasonable juror could infer that there was more to it than that.

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And I think that even though Mr. Lee's testimony provides

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significant amount of our case because Mr. Henspeth doesn't remember the incident.

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In this sense, the officer's action should be viewed objectively.

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And I don't think that Mr. Lee's interpretation of the officer's subjective intent is necessarily relevant to the analysis here.

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And we did cite

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the case Santos out of the Ninth Circuit that is very analogous to this situation in which the court, the Ninth Circuit held that the nature of where a defendant doesn't, or excuse me, where a plaintiff doesn't remember the incident, where the nature of the injuries are so in conflict with the officer's testimony as to what actually happened, a reasonable juror could infer that the officer did in fact cause the injuries and could make a credibility finding on that basis.

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And given that

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Because the whole case on this point, on this accidental versus intentional, the whole case turns on the officer's state of mind.

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Well, I think it's undisputed that he is.

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That's not a hostile question.

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Sure, sure.

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I think that

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given where Mr. Hedgepeth was positioned, and just viewing the situation objectively, and again, going back to the severity of the injury.

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I mean, on the one instance, we have Officer Rahim testifying that he merely touched Mr. Hedgepeth by his bicep, and that that made him fall over, and then that caused such an injury.

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So I think you take what the trial court found could be easily discredited.

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Officer Rahim's testimony could be easily discredited by a reasonable fact finder.

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and you could take the information from Mr. Lee in which he described an intentional takedown, but his interpretation of that is that it's not necessarily intentionally taking him to, taking him face first to the window grate.

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Again, I would go back again to the nature and the severity of the injury that even a reasonable- Did you introduce evidence or was there evidence that the physical consequence of the conduct could only have come about if the officer intended to

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I believe that some of the expert reports speak to that, speak to that issue, Dr. Scheiner's report and others.

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I believe they would opine that at least it's a reasonable probability that it would have been enough force required that would have evinced intent.

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Intent to hurt as opposed to intent to take down, because for these purposes, I think the district court allowed that there was an intent to use the maneuver.

[00:09:24] Speaker 02:
Yeah, right.

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Sorry to answer for you.

[00:09:27] Speaker 01:
Well, I wasn't sure if he was the district court was definitive on that point.

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There was some discussion about it.

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I mean, my interpretation of thought the district gave you the benefit of the doubt on that and said that there was an intent to use the takedown maneuver as opposed to there were some testimony from the officers as I recall that actually there wasn't even a maneuver.

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It was just kind of an accident that

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that Mr. Hetchpeth hit the ground at all, or hit the window at all.

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I think the district court gave you the benefit of the doubt on that and said, no, there was the maneuver used.

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Then the question becomes whether there's anything in the record sufficient to get past summary judgment to support the proposition that if you allow that the maneuver was used, then the officer nonetheless intended to

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to harm your client in a way that led to the injuries.

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Right.

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And I think that was largely based on Marcus Lee's testimony that he just didn't perceive the event.

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He didn't perceive the officer's intent in that manner.

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Again, I think a reasonable juror

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that were never produced, that were never preserved by the Metropolitan Police Department.

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Officers Raheem and Ryder both categorized the event as not a use of force incident, which would have triggered a series of investigations and things like that.

[00:10:51] Speaker 04:
But I take all that.

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But Lee, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean, I mean,

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has no incentive to testify in favor of the officers in that circumstance, right?

[00:11:02] Speaker 04:
Whereas the officers obviously do, which is your point.

[00:11:06] Speaker 01:
Exactly, and you know, the district routinely carries... But I mean, that's a problem, right?

[00:11:10] Speaker 04:
Because Lee's testimony hurts you.

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We have cases as well, particularly in a shooting incident where the victim is dead and can't testify about what happened, that we should be somewhat skeptical

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at the summary judgment stage of officers' one-sided testimony.

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But here, it's somewhat analogous to that because your client can't testify about the events, but we have this observer who says his perception of it is that it wasn't intentional.

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And he, correct me if I'm wrong, has no real incentive to testify in favor of the officers for any particular reason.

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He's just saying what he thinks, right?

[00:11:50] Speaker 01:
I agree, and I think he has no real incentive to testify in favor of Mr. Hedgefett either.

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He characterizes his relationship with him as someone he used to know, essentially.

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You know, I would just say that we're somewhat at a disadvantage in that respect.

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There may have been other witnesses.

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I mean, there was testimony from Tyler Davidson Webb that people were screaming police brutality.

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There was testimony from both Tyler Davidson Webb and Marcus Lee that they saw the officers taking witness statements from two African-American

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women on the scene which vanished in the same way the original, the so-called phantom African-American male that Mr. Hedgepest supposedly punched.

[00:12:29] Speaker 05:
And the officers own log books?

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There's some kind of book they're supposed to be carrying?

[00:12:34] Speaker 01:
No, the notebook.

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their notebook was missing.

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They lost their notebook from the time period in which this incident occurred.

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Sergeant Kieran, who was the commanding officer who responded to the scene, was deposed at length on these issues and essentially had no information that maybe the witness statements got stuck in a file.

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cabinet drawer somewhere or something to that effect.

[00:12:57] Speaker 01:
You know, if you take all of these little things together, I think that a reasonable fact-finder could make some inference of intent here, even more so than what Marcus Lee gives us in the incident.

[00:13:08] Speaker 01:
You know, why is Officer Rahim asserting that the only force he used was touching his bicep by the fingerprints?

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Why was there such a shift in rationale for the arrest?

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Where did all of it, where did all of it, where did the notes go?

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Where did the witness statements go?

[00:13:23] Speaker 05:
Those are concerning facts that raise an inference.

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I guess the question is, what is the inference that they could permissively raise for a reasonable jury?

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If you don't have evidence to go to a jury on the issue of intent, do you still have a claim?

[00:13:44] Speaker 01:
I think so, because I think the jury should interpret the officer's actions objectively, looking at what evidence we do have as to what the force was used, comparing that to the injury that the plaintiff sustained, and then drawing inferences based on that.

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I find, I know our cases, you're correct, that we have prior cases that talk about

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on the flip side, force used being reasonable and mention, two or maybe even three of them, that mention in quite similar situations where there's an arrest, somebody's taken down.

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But another factor supporting that the force used was reasonable was that the injuries of any were very slight.

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And I wondered about that logic.

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I mean, if the force used,

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to do an individual is the exact same force that caused slight injury in those other instances, but here it's a big guy, there's an awkward turn, and there's a wall right there with these sharp mountains

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Does the fact that he's more seriously injured actually, is it actually probative that the force used was not reasonable?

[00:14:57] Speaker 01:
I think so.

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I mean, I think it logically follows that the harsher the force, so to speak, the more likely the seriousness of the injury.

[00:15:06] Speaker 01:
So if you're in a situation where the officers put someone's hand behind their back and they do it a little bit rough, you know, or twist it a little more than they probably should, you know, that still can fall within reasonable amount of force to effectuate arrest and cases are consistent in that respect.

[00:15:23] Speaker 01:
But when you have a situation where a tactical takedown is done on the one hand and

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someone suffers a traumatic brain injury as a result of the fall from the tactical takedown versus maybe someone has a skinned knee, I think that you could infer a difference in the amount of force used there.

[00:15:41] Speaker 04:
Thank you.

[00:15:41] Speaker 04:
We'll give you some time on rebuttal.

[00:15:43] Speaker 01:
Thank you.

[00:15:55] Speaker 03:
Good morning, and may it please the Court, Carl Schifferle on behalf of Officers Raheem and Ryder.

[00:16:01] Speaker 03:
I'll start with the excessive force claim, and it is true that the only evidence that would have possibly supported this claim by the plaintiff

[00:16:11] Speaker 03:
would be the testimony of Mr. Lee, but Mr. Lee was clear in his testimony that the force used was designed and appeared, based on his observation of it, to secure Mr. Hedgebest's custody, to cuff him, and that the fact that his head hit the window appeared to him as he observed it, not Hedgebest.

[00:16:35] Speaker 03:
How does he know?

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How does he know what the officer really was trying to do?

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And I don't think the question really is subjectively what was in the officer's mind, but what appeared reasonably, objectively speaking, as he viewed the encounter.

[00:16:50] Speaker 03:
And I think that is very informative.

[00:16:52] Speaker 04:
Well, I don't think that's right, because objectively, his head hit the wall, the side of the building.

[00:17:07] Speaker 04:
The question of whether that was, is okay or not, okay is the wrong word, but liable or not depends on whether that was an accident or whether that was intentional.

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And that in turn, correct me if I'm wrong, depends on whether the officer was trying because he was angry or responded to push his head into the wall or whether he was merely trying to take him down and it was an accident that he slipped or awkwardly fell into the wall.

[00:17:38] Speaker 04:
So it all depends on whether the officers, I'll use the word intent, was to take him down, for me at least, was to take him down without hitting the wall, or the officer in a fit of pique kind of intended to rough him up a little.

[00:17:54] Speaker 03:
And Lee's testimony would be the former.

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Right, but how does he know?

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based on his objective observation of the incident.

[00:18:01] Speaker 03:
We don't have a video.

[00:18:02] Speaker 04:
But it depends on what the officer thought.

[00:18:04] Speaker 04:
It depends on what the officer thought at the moment, not what we observed.

[00:18:11] Speaker 04:
Because the observation, if it was an accident and intentional, the same thing would have happened.

[00:18:17] Speaker 04:
Namely, he's pushed to the ground, falls into the wall.

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It depends what he wanted.

[00:18:23] Speaker 03:
But it is still an objective test.

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I recognize the distinction Your Honor is making, and I do agree with that.

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For example, a gratuitous act of violence that serves no governmental interest, yes, would be a violation of the Fourth Amendment.

[00:18:36] Speaker 03:
But that is not Lee's testimony.

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Lee is the only one who even supports the notion that this was an intentional takedown.

[00:18:43] Speaker 04:
Suppose we had no witness here.

[00:18:44] Speaker 04:
Same facts.

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Does it get to a jury?

[00:18:49] Speaker 03:
No lead testimony, in other words.

[00:18:51] Speaker 03:
Right.

[00:18:52] Speaker 03:
No, Your Honor, because it's still the plaintiff's burden of proof.

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As any Section 1983 claimant, he has the burden.

[00:18:58] Speaker 04:
But that would mean any time the plaintiff gets killed or gets injured so severely that he or she can't remember what happened, that the officer gets summary judgment and an excessive force claim, which strikes me as can't be right.

[00:19:15] Speaker 03:
Well, certainly there's going to be some consequences from the rule that the plaintiff has the burden of proof, and perhaps in some situations that will be true.

[00:19:22] Speaker 03:
I recognize the concern, but it's still fundamental that the plaintiff has the burden of proof.

[00:19:26] Speaker 03:
I would also say that it's not this case.

[00:19:28] Speaker 03:
We do have that with us.

[00:19:29] Speaker 03:
Right.

[00:19:29] Speaker 04:
But why wouldn't the rule, sensible rule in these circumstances be, if you end up with an injury like that,

[00:19:37] Speaker 04:
And it depends on whether it was an accident as a result of otherwise permissible police activity or whether the police, for whatever reason, a rogue officer or what have you, intentionally roughed someone up, that the jury should determine that.

[00:19:56] Speaker 03:
I guess I would disagree with the general rule.

[00:19:59] Speaker 03:
I mean, the facts of each case are going to be different.

[00:20:01] Speaker 03:
And so the court might want to look at the particular facts differently.

[00:20:05] Speaker 03:
Again, that's not this particular case.

[00:20:07] Speaker 03:
Not only do we have this witness, it's the defendant's position.

[00:20:10] Speaker 03:
The reason Mr. Hedgepath can't recall anything is because he was severely intoxicated.

[00:20:14] Speaker 03:
He had the equivalent of 14 alcohols.

[00:20:16] Speaker 04:
And that can't be right.

[00:20:17] Speaker 04:
It can't be you ask for it, you get it.

[00:20:19] Speaker 04:
So you're drunk, and you can't remember.

[00:20:21] Speaker 04:
Therefore, the police have a free shot.

[00:20:24] Speaker 03:
Well, if I understood the premise of your question, Your Honor, it's unfair to the plaintiff when the plaintiff can't produce evidence.

[00:20:30] Speaker 03:
My point is if the reason the plaintiff can't produce evidence is the plaintiff's involuntary actions, then there's not a real unfairness there.

[00:20:38] Speaker 05:
I don't want to put words into his mouth, but I think Judge Kavanagh's reaction to that answer was, really?

[00:20:47] Speaker 05:
Someone is, in some way,

[00:20:52] Speaker 05:
unable to recall, and therefore open season, as long as their inability to recall was based on their own at some level bad action?

[00:21:01] Speaker 03:
No, Your Honor, I'm just talking about

[00:21:06] Speaker 03:
this particular narrow question, which doesn't even apply here.

[00:21:10] Speaker 03:
We have, as in any case, we're going to have additional facts, additional evidence.

[00:21:14] Speaker 03:
We're going to have the testimony of officers.

[00:21:16] Speaker 03:
It's going to be evidence in the case.

[00:21:18] Speaker 03:
And not only do we have the testimony of officers, we have the testimony of Mr. Lee.

[00:21:21] Speaker 03:
We have – and I would submit, too, that in addition to Mr. Lee's own characterization based on his observation of the incident, we have the fact that Mr. Hedgepeth was facing away from the building

[00:21:30] Speaker 03:
at the time that the officer tried to cuff him.

[00:21:33] Speaker 03:
So it was not obvious that Mr. Hedgepath would spin entirely around and hit his head.

[00:21:39] Speaker 03:
This is not a situation where it was obvious, based on the situation of the individuals, that this would happen.

[00:21:46] Speaker 03:
And you have to recognize that officers act, as the Supreme Court has recognized, under difficult tense and certain circumstances.

[00:21:53] Speaker 04:
I think that's a different question.

[00:21:54] Speaker 04:
What you just said really goes to whether the takedown itself was so dangerous

[00:21:59] Speaker 04:
that it shouldn't have been attempted in that particular spot.

[00:22:02] Speaker 04:
And I think you have a good case on that as to the takedown.

[00:22:06] Speaker 04:
My further point is whether the smashing into the window, you know, smashing is paraphrasing, I understand, is

[00:22:14] Speaker 04:
an accident or intentional.

[00:22:17] Speaker 04:
And, you know, we have these cases, you're aware, so I think you've argued a bunch of them, like the Flythe case where the Judge Tatel wrote the opinion where the victim ends up dead and said we shouldn't accept what may be a self-serving account by the police officer in those circumstances because

[00:22:41] Speaker 04:
as he as Judge Tatel wrote for the court and that sort of history is usually written by those who survived to tell the tale.

[00:22:48] Speaker 03:
And there is Mr. Lee.

[00:22:50] Speaker 03:
We have that witness who is a friendly witness for the plaintiff.

[00:22:53] Speaker 05:
Well, you're crediting Mr. Lee and first of all, I'm not sure that he really counts as a friendly witness for the plaintiff.

[00:23:03] Speaker 05:
I think he is just an acquaintance.

[00:23:06] Speaker 05:
He's someone who hasn't seen this fellow for a long time.

[00:23:08] Speaker 05:
He hesitates.

[00:23:10] Speaker 05:
to take him home.

[00:23:11] Speaker 05:
I think in part he's, if you want to make your point about that, you can.

[00:23:17] Speaker 03:
Well, yeah, I would say the reason he hesitated to take him home, he was on friendly terms and he said, I'd be happy to do it, but he's too hard to handle.

[00:23:24] Speaker 03:
He won't go.

[00:23:24] Speaker 05:
He said he can sometimes be difficult to handle.

[00:23:27] Speaker 05:
And if I ran into somebody that I used to work with 10 years ago and he were intoxicated and I was, you know,

[00:23:36] Speaker 05:
might hesitate to take that person on into my own custody and take that person.

[00:23:41] Speaker 05:
It's not like they were out together, was my point.

[00:23:43] Speaker 05:
But anyway, you're willing to credit Mr. Lee.

[00:23:47] Speaker 03:
Well, for sake of summary judgment, yes.

[00:23:49] Speaker 05:
For sake of summary judgment.

[00:23:50] Speaker 05:
So Mr. Lee's testimony on page J87 is, I didn't think it was right what was happening to him.

[00:23:57] Speaker 05:
I didn't think that was warranted, the amount of force

[00:24:02] Speaker 05:
I didn't think that was warranted, the amount of force.

[00:24:04] Speaker 05:
So to him, this looked like something alarming.

[00:24:07] Speaker 05:
He said, I didn't think that he intended his head to crack open, but I did think that he was using more force than was warranted under the circumstances.

[00:24:19] Speaker 05:
I didn't think that was warranted, the amount of force and the fact that he was visually seriously hurt.

[00:24:24] Speaker 05:
I wanted to make sure that somebody who saw the whole thing,

[00:24:28] Speaker 05:
could do what I'm doing now, which is being a witness.

[00:24:29] Speaker 05:
He thought there was something wrong that went on.

[00:24:32] Speaker 03:
But I do think we should distinguish between an individual's opinion about whether the force is reasonable, a purely legal question, and the factual question of whether the officer, it appeared objectively, intended that Mr. Hedgepest hit his head.

[00:24:47] Speaker 03:
or that the officer was merely trying to cuff Mr. Hedgeman.

[00:24:52] Speaker 03:
That is what we testified.

[00:24:53] Speaker 03:
He was merely trying to cuff him.

[00:24:55] Speaker 05:
It was not intentional.

[00:24:56] Speaker 05:
Mr. Lee's testimony doesn't appear to be dispositive on either question, because he can't be inside Officer Rahim's head, and because, as you point out, it's a legal question whether the force use is reasonable.

[00:25:09] Speaker 05:
But all I'm pointing out is that it seems suggestive on both, and it doesn't cut all in favor of Officer Rahim.

[00:25:17] Speaker 03:
I think it does.

[00:25:19] Speaker 03:
I think at least it's not sufficient enough for the plaintiff to carry his burden of proof.

[00:25:23] Speaker 03:
Judge Kavanaugh, I would say that it is relevant, the test that the Supreme Court has announced for reviewing excessive force cases, that you have to recognize that an officer is acting under tense, difficult

[00:25:34] Speaker 03:
and rapidly evolving circumstances.

[00:25:36] Speaker 03:
And what that would mean in this situation is that an officer is not going to know in advance, be able to predict with clarity, how an individual is going to react to a certain application, of course, or the physical dynamics that will result when force is applied.

[00:25:51] Speaker 04:
There is a vast... I'm not questioning the takedown necessarily.

[00:25:56] Speaker 03:
Right, but the product of the takedown.

[00:25:58] Speaker 02:
So what's your response on that score?

[00:25:59] Speaker 02:
What's your response to the opposing counsel's argument that

[00:26:04] Speaker 02:
If you take apart, if you disaggregate the takedown from the consequence of the takedown, and we're only looking at the consequence of the takedown, so we'll say, just assume for purposes of argument, I'm not saying we necessarily come down one way or the other, but assume for purposes of argument that it was okay to implement the takedown maneuver.

[00:26:23] Speaker 02:
Then the question becomes, does the injury that resulted there from, is it of a character that indicates that there was an intent to physically harm

[00:26:33] Speaker 02:
Mr. Hedgepeth when he was being subjected to the takedown maneuver.

[00:26:37] Speaker 02:
Right.

[00:26:37] Speaker 02:
And on that, the argument that opposing counsel has given is if you look at the consequence alone, that would tell you that it had to result from an intent to hurt him.

[00:26:45] Speaker 02:
What's your response to that?

[00:26:46] Speaker 03:
Right.

[00:26:46] Speaker 03:
So I disagree.

[00:26:47] Speaker 03:
The consequence alone cannot be determinative.

[00:26:49] Speaker 03:
We have Lee's testimony.

[00:26:50] Speaker 03:
We have the fact that Mr. Hedgepeth was facing a wave.

[00:26:53] Speaker 02:
Well, you know, do you mean the consequence alone can never be determinative?

[00:26:56] Speaker 02:
Because I would think that at least as a met, conceptually, you could have a circumstance in which

[00:27:01] Speaker 02:
you could have a consequence that is so severe that there could be persuasive testimony or at least enough testimony to get the jury to the effect that that kind of consequence, even given a takedown maneuver, couldn't have occurred unless the officer intended to bash the person's head into the side of a wall.

[00:27:19] Speaker 02:
I'm not saying that's the case, but I'm saying that's conceivable.

[00:27:23] Speaker 03:
It is at the outer edge of conceivable.

[00:27:26] Speaker 03:
And the reason I say that is because it is unpredictable the exact consequence that will result from a particular application of force.

[00:27:34] Speaker 03:
And it may be that a particular application of force, 99,000 times, or 999 times out of 1,000, there's no injury.

[00:27:44] Speaker 03:
by odd chance that one time out of a thousand it does result in a serious injury.

[00:27:48] Speaker 03:
That doesn't mean that the use of force was unreasonable or that sufficient evidence to carry that burden.

[00:27:55] Speaker 05:
We do have, I mean there are cases, you're right, around the country where a takedown maneuver that I gather is a relatively standard police aid to arrest results in

[00:28:07] Speaker 05:
some moderate to serious injury.

[00:28:10] Speaker 03:
Right, it can happen.

[00:28:11] Speaker 03:
That doesn't mean it's unreasonable just because it does.

[00:28:14] Speaker 05:
What was, in your view, the basis for the arrest?

[00:28:22] Speaker 03:
So the basis for the arrest was whether it was probable cause as either assault and other offenses or to public intoxication and at the very least qualified immunity as to public intoxication.

[00:28:34] Speaker 03:
I think it's notable that in the reply rate plaintiff doesn't even address that argument.

[00:28:39] Speaker 05:
But let me just back up.

[00:28:41] Speaker 05:
On the assault, if you take the facts in the light most favorable to the plaintiff on this record,

[00:28:47] Speaker 05:
And that's where I think Mr. Scrofano's argument about the two versus one and the district court analysis of that is actually quite important because the facts read and the light most favorable to the plaintiff are that there was only Lee, there was no other victim of Hedgepeth's assault and that Lee said, hey, we're just goofing around.

[00:29:13] Speaker 05:
So there wasn't actually, if you take the facts in the lightmost paper, was a plan of any basis for arrest for assault.

[00:29:20] Speaker 03:
No, we disagree.

[00:29:21] Speaker 03:
We think the district court was correct.

[00:29:22] Speaker 03:
It said that there was no evidence supporting this theory that there were two separate transactions.

[00:29:27] Speaker 05:
All right.

[00:29:27] Speaker 05:
Set aside the assault.

[00:29:29] Speaker 05:
On public intoxication, is the policy on finding someone downtown who is intoxicated

[00:29:40] Speaker 05:
that's a misdemeanor and those people, if the officers choose, can be arrested?

[00:29:47] Speaker 03:
I know, Your Honor.

[00:29:48] Speaker 03:
The law provides that if a person is intoxicated in public, there has to be some form of public intervention, whether getting the individual home safely, taking them to a facility, or a detoxification center.

[00:30:02] Speaker 03:
If it's a crime, if the person is a danger to self or others, which is the element that it was.

[00:30:09] Speaker 05:
Just let me back up.

[00:30:10] Speaker 05:
When you say that the policy is that they take them, is that that the police take them those places, or is there

[00:30:16] Speaker 05:
a service they call, when if you aren't with people who are willing to take you home, how does that actually work?

[00:30:23] Speaker 05:
Because I read that part of DC law that says, you know, we take them to a shelter, and it's in the passive voice.

[00:30:31] Speaker 05:
So I wondered who is it that actually does that?

[00:30:34] Speaker 03:
Right.

[00:30:35] Speaker 03:
Well, I think it's a practical matter.

[00:30:37] Speaker 03:
The pertinent probably falls on the officers.

[00:30:39] Speaker 03:
I mean, they're always the ones

[00:30:40] Speaker 03:
sort of first on the scene as the officers were here.

[00:30:43] Speaker 03:
But I did want to say, back on the excessive force claim, I didn't necessarily fully develop the qualified immunity argument.

[00:30:49] Speaker 03:
So even if the force arguably was unreasonable, there is a qualified immunity doctrine which protects, you know, where there is that hazy border between excessive and acceptable force.

[00:30:59] Speaker 03:
That officer looking at this court's case law

[00:31:01] Speaker 03:
The Scott case, the Martin case, Oberwetter, Wardlaw, Wasserman, they all.

[00:31:07] Speaker 04:
I mean, I'm going to repeat myself now, but that goes to the takedown being OK, or at least lawful, or not producing liability here.

[00:31:17] Speaker 04:
But it doesn't answer the question necessarily of the intent versus accident.

[00:31:23] Speaker 04:
Because you would agree, and I assume, that if the officer in these circumstances intentionally slammed his head into the wall, there would be no qualified immunity.

[00:31:31] Speaker 03:
If it was a gratuitous act to further know government interest.

[00:31:37] Speaker 03:
That's correct.

[00:31:39] Speaker 04:
So qualified immunity doesn't help you

[00:31:42] Speaker 04:
If the if there's sufficient evidence and query what is sufficient, but it's sufficient evidence that the officer intentionally slammed his head into the wall.

[00:31:53] Speaker 04:
Qualified immunity wouldn't alter that calculus.

[00:31:57] Speaker 03:
Well, as I see it.

[00:31:58] Speaker 03:
Yeah, I mean, I would say gratuitous with no governmental purpose.

[00:32:01] Speaker 03:
It would have to be obvious.

[00:32:02] Speaker 03:
It would have to be an obvious case looking at it objectively.

[00:32:06] Speaker 03:
Um,

[00:32:06] Speaker 03:
in someone, you know, in the standpoint of Mr. Lee, looking at it objectively.

[00:32:11] Speaker 03:
And he came, I mean, he's reporting what he observed.

[00:32:14] Speaker 04:
I guess the problem with that systemically, I was thinking about a bigger picture here, is that where there aren't witnesses observing, and I realize you have Lee here, so put that to the side, but where there aren't witnesses observing, that's gonna, again, mean that officers generally will get summary judgment even when they intentionally

[00:32:35] Speaker 04:
slam someone's head into the wall.

[00:32:38] Speaker 03:
No, no, not at all.

[00:32:39] Speaker 04:
Because there won't be a witness in cases without witnesses observing.

[00:32:44] Speaker 03:
Well, there will be the testimony officer.

[00:32:46] Speaker 03:
I mean, they do have to testify truthfully.

[00:32:48] Speaker 03:
They're under oath.

[00:32:49] Speaker 04:
Right, but usually the jury is the body in our system that weighs credibility in a circumstance like that, not the judge reading a paper record.

[00:33:01] Speaker 03:
Right.

[00:33:01] Speaker 03:
And I'm not here to advocate some general rule.

[00:33:04] Speaker 03:
It will depend on the facts and circumstances of each case.

[00:33:07] Speaker 03:
And the facts and circumstances here don't give rise to the concern that we submit, because we do have that testimony of Lee.

[00:33:14] Speaker 03:
And it is the plaintiff that has the burden of proof.

[00:33:16] Speaker 03:
And there's going to be consequences to having that burden.

[00:33:19] Speaker 03:
And maybe in every case, it's not particularly fair, but one could think.

[00:33:24] Speaker 03:
But here.

[00:33:24] Speaker 03:
What do we do about what counsel said about the missing notes and missing

[00:33:30] Speaker 03:
And there was no argument raised in the plaintiff's brief.

[00:33:34] Speaker 03:
There's some mention of that in the statement of facts.

[00:33:37] Speaker 03:
But there's no argument that was raised in the brief.

[00:33:39] Speaker 03:
So that argument has been forfeited.

[00:33:40] Speaker 03:
And it wasn't presented before the district court, at least in any form that they can say the district court erred in some way in not addressing it.

[00:33:47] Speaker 03:
They didn't ask for any particular relief before the district court.

[00:33:50] Speaker 03:
At least it was not preserved at all.

[00:33:52] Speaker 05:
So just circling back, the offenses that give rise to reason for arrest, you said the assault,

[00:34:01] Speaker 05:
on other civilians and the public intoxication.

[00:34:08] Speaker 05:
And the public intoxication, the reason on these facts to believe that Mr. Hedgepeth was a danger to himself or others was what?

[00:34:16] Speaker 03:
The testimony that he was severely intoxicated, this is not a normal level of intoxication, that he was heavily impaired, and that's corroborated by the fact that he did have a lot of alcohol level indicating 14 alcoholic drinks in his system at the time.

[00:34:29] Speaker 03:
So that level of severity does indicate a danger.

[00:34:31] Speaker 03:
The fact that this was a busy commercial intersection at night, there's some cases we've cited that support the proposition that in that situation, the element of danger itself or others.

[00:34:40] Speaker 04:
What was the numerical, remind me, the numerical BAC was?

[00:34:46] Speaker 05:
It was consistent with something like 14.

[00:34:47] Speaker 03:
I know it was 14 drinks.

[00:34:49] Speaker 03:
I don't recall offhand the 14 drinks.

[00:34:54] Speaker 05:
So if somebody's of a danger to self or others, then they don't go to a shelter or detox, they go into the lockup?

[00:35:04] Speaker 03:
Well, it is a crime.

[00:35:06] Speaker 03:
And the question here is not whether the crime was committed, but whether the office had probable cause.

[00:35:12] Speaker 03:
And even more, whether they had arguable probable cause.

[00:35:15] Speaker 03:
I understand that.

[00:35:17] Speaker 05:
Just because we're not focusing on the qualified immunity doesn't mean that we don't understand that that is an extremely important part of the analysis.

[00:35:24] Speaker 05:
We're just trying to go step by step.

[00:35:28] Speaker 05:
I'm trying to understand whether there is in fact objectively reasonable basis for arrests before putting the qualified immunity lens on it.

[00:35:37] Speaker 05:
And part of what's puzzling me is if an individual is in a condition that it is a crime, I just wanted to know, do you send them to a shelter or is that only if someone is just

[00:35:53] Speaker 03:
You want to get them off the street because they're... Well, they may be taken to a detoxification center first or receive some sort of medical treatment first before they're taken and actually processed as an arrest.

[00:36:07] Speaker 03:
But nevertheless, it would be an arrestable offense.

[00:36:10] Speaker 03:
And the other circumstances, I didn't get through them but to respond,

[00:36:13] Speaker 03:
The fact that Mr. Lee said, I can't take him home.

[00:36:17] Speaker 03:
He's too hard to handle.

[00:36:19] Speaker 03:
He won't go.

[00:36:20] Speaker 03:
The fact that Mr. Hedgepest was verbally belligerent.

[00:36:24] Speaker 03:
He was very noncompliant.

[00:36:27] Speaker 03:
These facts and circumstances gave rise to the suggestion that anyone who tried to intervene, whether it's the officers or, as I said,

[00:36:35] Speaker 03:
public intervention is required when somebody is intoxicated in public.

[00:36:39] Speaker 03:
So that's a threat to any person who might try to intervene to assist him.

[00:36:42] Speaker 03:
He's a threat to passerby.

[00:36:43] Speaker 03:
There's a lot of people around, even assuming that Mr. Hedgepeth didn't push that tall black male.

[00:36:49] Speaker 03:
You can see how that situation might develop with a lot of people around Mr. Hedgepeth being very belligerent.

[00:36:54] Speaker 02:
Was there the screaming there was there's reference to screaming and references to the Incredible Hulk and I'm just wondering was this was it undisputed that the screaming occurred independently of screaming in response to the efforts of the officer to put handcuffs on him.

[00:37:10] Speaker 03:
We do think it's.

[00:37:12] Speaker 03:
uh... not genuinely disputed uh... that that was the case that the office that's that's by the screaming yelling was before although you're putting credence on senate didn't start until after the efforts to arrest him

[00:37:26] Speaker 03:
I think his testimony is ambiguous on that point.

[00:37:29] Speaker 03:
I don't think it's enough to create a genuine dispute in light of the officer's testimony.

[00:37:33] Speaker 03:
But in any event, it was contemporaneous.

[00:37:34] Speaker 03:
So I think the officers were still entitled to rely upon that.

[00:37:38] Speaker 03:
And it's just further demonstration of the fact that he was a danger to himself and others, given this very volatile situation, this intoxication of a circumstance.

[00:37:49] Speaker 05:
Did you watch the little few-second video?

[00:37:51] Speaker 03:
Of course, Your Honor.

[00:37:53] Speaker 05:
Did he seem to you to be dangerous?

[00:37:56] Speaker 03:
Well, first of all, the few-second video is not – that doesn't capture the entire incident.

[00:38:02] Speaker 03:
It does corroborate the fact that he was swaying.

[00:38:05] Speaker 03:
We do think that it shows that he was swaying back and forth.

[00:38:09] Speaker 03:
And of course, as I said, I mean, the video doesn't capture the entire incident, and there's no dispute.

[00:38:14] Speaker 03:
even according to Mr. Lee, that Mr. Hedgebeth was quite belligerent, yelling, very aggressive, verbally aggressive, very angry, like the whole.

[00:38:25] Speaker 03:
That evidence was all undisputed, or the testimony was consistent on those points.

[00:38:32] Speaker 03:
And I see I'm beyond my time, unless the court has further questions.

[00:38:36] Speaker 04:
Okay, thank you.

[00:38:36] Speaker 03:
Thank you.

[00:38:37] Speaker 03:
Give you a few minutes for rebuttal.

[00:38:47] Speaker 01:
I could just make a couple points on the issue of public intoxication.

[00:38:51] Speaker 01:
A few things.

[00:38:54] Speaker 01:
It is very much in dispute whether Mr. Hedgepeth was verbally belligerent or was screaming up until the point that he was told he was being placed under arrest.

[00:39:04] Speaker 01:
Marcus Lee testifies in his deposition that he did not start screaming until Officer Rahim said, I'm going to put you under arrest, and he started screaming.

[00:39:15] Speaker 01:
The only thing that Marcus Lee testified him screaming was

[00:39:18] Speaker 01:
things to the effect of, no, I didn't do anything.

[00:39:22] Speaker 01:
There's no kind of belligerence in the interaction and the run-up to the decision to arrest Mr. Hedgepeth.

[00:39:27] Speaker 01:
In fact, Mr. Lee characterizes as Mr. Hedgepeth being not, he says Mr. Hedgepeth wasn't being coherent, he wasn't answering their questions, and at the point

[00:39:37] Speaker 01:
where they told him, we've decided that we're going to arrest you.

[00:39:40] Speaker 01:
That's where I remember fairly clearly him starting to yell saying no.

[00:39:44] Speaker 01:
And that's in Marcus Lee's testimony.

[00:39:48] Speaker 01:
So the screening doesn't actually occur.

[00:39:49] Speaker 01:
What we have before the decision to arrest Mr. Hedgepad is essentially him not answering questions.

[00:39:55] Speaker 01:
We have a video of him in our interpretation of the video as well as Mr. Lee's interpretation of videos that he's not swaying.

[00:40:02] Speaker 01:
He's not a danger to himself.

[00:40:04] Speaker 01:
The most heavily relied on fact to assert that Mr. Hedgepeth was a danger to himself was this throwaway, you know, statement by Mr. Lee in which he said he could be hard to handle.

[00:40:14] Speaker 04:
Now, I think pushing the officers believed that he'd pushed someone

[00:40:19] Speaker 04:
And then Lee says he's hard to handle.

[00:40:23] Speaker 04:
And then he's not being cooperative.

[00:40:26] Speaker 04:
And obviously, the officers observe him and decide that he is intoxicated.

[00:40:33] Speaker 04:
And this is why it's hard to be a police officer.

[00:40:36] Speaker 04:
If you don't arrest him and he stumbles across the street and gets hit by a car,

[00:40:41] Speaker 04:
the officers are going to feel pretty bad about that.

[00:40:45] Speaker 04:
Or if they don't arrest him and he goes and just punches someone, beats them to smithereens, the officers are going to feel bad about that too.

[00:40:54] Speaker 04:
Like they didn't do their job if they don't arrest him.

[00:40:57] Speaker 04:
That's why it's hard to be a police officer and make a decision like this, whether to arrest.

[00:41:02] Speaker 04:
That's separate from the force question.

[00:41:04] Speaker 04:
But on the arrest question,

[00:41:06] Speaker 04:
you know, when you put the qualified immunity thing on it and you're thinking about the officers are there to try to protect him and protect the surrounding people from it's a tough it's a tough job deal with people who have had 14 drinks in them.

[00:41:20] Speaker 01:
And your honor, I completely agree with your honor to the extent

[00:41:24] Speaker 01:
that you're relying on the facts that you asserted, which I think are facts that are in the defendant's light.

[00:41:29] Speaker 01:
I think that the facts most favorable to the plaintiff in this instance show only that the officers witnessed Hedgepeth maybe punch or push Marcus Lee.

[00:41:38] Speaker 01:
They approached.

[00:41:39] Speaker 01:
Marcus Lee immediately told the officer, hey, we know each other.

[00:41:42] Speaker 01:
It's not what you think.

[00:41:43] Speaker 01:
At that point, there's no issue in terms of any physical confrontation or Mr. Hedgepeth punching or pushing people.

[00:41:50] Speaker 01:
Mr. Lee then goes on to testify that he's just simply refusing to answer their questions.

[00:41:55] Speaker 04:
But the officers, right?

[00:41:56] Speaker 04:
I see your point about the defendant's light.

[00:41:59] Speaker 04:
You know, if the blood alcohol test came back and showed he'd had two drinks, that would be a much stronger case.

[00:42:05] Speaker 04:
Comes back and shows that they have 14 drinks, and obviously they don't know that at the time, I realize, but it does suggest that they weren't crazy to think that he was wasted.

[00:42:13] Speaker 01:
Right, and I've seen a few things in the appellee's pleading suggesting that it's 14 one ounce drinks.

[00:42:19] Speaker 01:
Now, I'm not sure if that means 14 shots or 14, you know, one ounces of beer, if it was 14 ounces of beer.

[00:42:25] Speaker 04:
Well, if it's 14 one ounce beers, that's nothing.

[00:42:28] Speaker 04:
So that wouldn't be...

[00:42:30] Speaker 01:
Right.

[00:42:31] Speaker 01:
In any event, given, I mean, if we're taking Marcus Lee's testimony as to what Mr. Hedgefest's behavior was in the run-up to the decision to arrest, which I think the court has to do at this stage, it's not this grand thing that the appellees have made.

[00:42:44] Speaker 01:
He's screaming, cursing, this and that.

[00:42:46] Speaker 01:
Marcus Lee is clear.

[00:42:47] Speaker 01:
He's just refusing to answer questions.

[00:42:49] Speaker 01:
And if you take Officer Ryder's testimony,

[00:42:52] Speaker 01:
Mr. Hedgepeth did produce his identification in the instance.

[00:42:55] Speaker 01:
So he's at least cooperating at some level, because as you recall from Officer Ryder's testimony, Officer Ryder missed the whole takedown, because at the split second he looked down to take a picture of Mr. Hedgepeth's license that he produced, he missed the whole thing.

[00:43:10] Speaker 01:
So there is some cooperation.

[00:43:11] Speaker 01:
It's more of a failure to answer questions.

[00:43:13] Speaker 01:
The yelling and the belligerence doesn't come until after the decision to arrest has been made.

[00:43:18] Speaker 05:
And I don't think that that... What's your best site for that,

[00:43:20] Speaker 05:
When the yelling starts, because the officers are invoking his yelling as part of the belligerence that they believe supports an arrest for public intoxication, and I take your position to be that the record doesn't support that, or at least a reasonable jury could find otherwise,

[00:43:40] Speaker 05:
And is that Mr. Lee's testimony?

[00:43:43] Speaker 01:
I think it's very much a fact in dispute as to when the yelling started.

[00:43:46] Speaker 01:
Mr. Lee testifies that Mr. Hedgepest doesn't start yelling until he's told by Officer Rahim, I'm going to put you under arrest.

[00:43:57] Speaker 01:
And then Officer Rahim grabs his left hand.

[00:43:59] Speaker 01:
And then it's at that point, the whole transaction begins.

[00:44:05] Speaker 01:
If I could make just another point as well on Officer Rahim's intent.

[00:44:10] Speaker 01:
Again, it seems as I'm hearing your honors are somewhat, I'm interested in Officer Rahim's intent and the lack of evidence and the evidence of Mr. Lee, you know, stating I don't think he intended to harm him in that way.

[00:44:22] Speaker 01:
I do think the court can make reasonable inferences in the plaintiff's favor based on Officer Rahim's own

[00:44:29] Speaker 01:
of what happened, that he just touched him on his biceps and that he fell over as a result of that.

[00:44:35] Speaker 01:
I think the lack of evidence, the lack of the missing notes, the failure to preserve the witness statements, the fact that they designated this as a non-use of force incident and there was no further investigation.

[00:44:47] Speaker 01:
To me, it seems a reasonable inference you could draw on the plaintiff's favor is that Officer Rahim is acting with some ill intent.

[00:44:53] Speaker 05:
Are you also relying on the portion of your deposition of Mr. Lee?

[00:44:59] Speaker 05:
in which you ask him, did it result in a loud noise?

[00:45:03] Speaker 05:
How loud are we talking?

[00:45:05] Speaker 05:
And Mr. Lee says, very loud.

[00:45:07] Speaker 05:
I was like, it was so loud that everyone who was walking with an earshot stopped to look at what the police officers were doing.

[00:45:14] Speaker 05:
It was so loud that a person who was inside Den of Thieves, the bar, actually came outside to look and see what was going on in front of his store.

[00:45:21] Speaker 05:
That was how loud.

[00:45:22] Speaker 01:
Absolutely.

[00:45:24] Speaker 01:
I think a reasonable inference can be drawn from that as well as to the extent in which Officer Rahim, or the level of force that Officer Rahim used in order to subdue, again, a suspect who essentially was just refusing to give one arm to him and not pulling away, it wasn't, you know, was not actively opposing the officer, wasn't trying to flee, wasn't trying to escape.

[00:45:46] Speaker 01:
and not to mention officer writers right there on the scene so i understand that you know we it's it's difficult to second guess officers in these situations i could see a situation where officers by himself that take down might be more reasonable or more necessary but even mark asleep has to find that he didn't understand why officer rights on the on that but we can't second guess just just saying that that's clear that we can't second-guessing that one officer should be able to be

[00:46:12] Speaker 05:
and the other officers should be able to manage a suspect if the suspect's been caught.

[00:46:19] Speaker 04:
On the slamming of the head.

[00:46:22] Speaker 04:
Is it really just what is in his mind?

[00:46:25] Speaker 04:
Because counsel says, well, based on our own experiences in life, we can distinguish sometimes when we're observing someone who is trying to take someone down and accidentally hits their head and someone who's really trying to push someone's head into a wall.

[00:46:40] Speaker 04:
Those two things based on our experience and we observe can be distinguished.

[00:46:44] Speaker 04:
And Lee here says,

[00:46:46] Speaker 04:
quite seriously, quite succinctly.

[00:46:49] Speaker 04:
I don't think he meant for Jonathan to sling his head into the side of the building.

[00:46:53] Speaker 04:
I think that's just what happened as Jonathan was falling to his left side.

[00:46:59] Speaker 04:
I'm not sure what we're supposed to do with that.

[00:47:04] Speaker 02:
again I think I think that's one piece of it and I think your honor was was on point asking counsel for appellee how does he know that you know how does he know but if he would have said the opposite would you have been using it as evidence in your favor oh yeah you can just say yes to that and then it turns out that

[00:47:25] Speaker 01:
it's somebody's observations can be probative right and we are and we would argue where where the disadvantage in the sense that you know we have a plaintiff who doesn't remember the incident now that police would argue that it's because of his level of intoxication we would argue that it's because the nature of his of his head injury that

[00:47:40] Speaker 01:
you know, sort of given that kind of retroactive amnesia as to the incident.

[00:47:45] Speaker 01:
And I think that goes again to the court's point about it.

[00:47:47] Speaker 01:
If someone is shot and there's no witnesses, you know, does that mean that every officer can get away with that summary judgment in every case that comes before the court if the plaintiff doesn't remember?

[00:47:59] Speaker 04:
All right.

[00:48:00] Speaker 04:
Thank you both.

[00:48:00] Speaker 04:
Council, the case is submitted.