[00:00:00] Speaker 00: Case number 21-7138, Artacha Kelly, a balance versus Anthony Gayton officer, District of Columbia, Metropolitan Police Department, and District of Columbia, a municipal corporation. [00:00:14] Speaker 00: Ms. [00:00:14] Speaker 00: Golden for the balance, Mr. Garton for the police. [00:00:19] Speaker 02: Good morning, Ms. [00:00:19] Speaker 02: Golden. [00:00:20] Speaker 02: Good morning, Your Honors. [00:00:24] Speaker 03: May I please the court? [00:00:28] Speaker 03: In response to a minor misdemeanor, [00:00:33] Speaker 03: A police officer with no warning tackled Ms. [00:00:37] Speaker 03: Kelly, who everyone agrees is a very small woman, less than half his size. [00:00:45] Speaker 03: At the time he tackled her, she had stepped back. [00:00:48] Speaker 03: The physical altercation had ceased. [00:00:50] Speaker 03: The two women were in fact separated by someone else. [00:00:54] Speaker 03: There was no danger to anyone else or the officer on the scene. [00:00:58] Speaker 03: She wasn't fleeing. [00:00:59] Speaker 03: She wasn't even aware that there were police in the vicinity. [00:01:03] Speaker 03: Yet by effectuating arrest with a full speed of a bow tack and cracking her pelvis, the officer on the scene violated the Fourth Amendment. [00:01:17] Speaker 03: In analyzing this situation, the district court made three mistakes of law that we believe require reverse. [00:01:24] Speaker 03: The first is that under the Fourth Amendment, a police officer cannot use [00:01:30] Speaker 03: surprise extreme physical force against a non-resisting misdemeanor is posing no real physical danger to anyone. [00:01:41] Speaker 03: Second error is that this is clearly established under the case. [00:01:46] Speaker 03: And the third error was in finding that the officer was not entitled to a qualified privilege for assault and battery under District of Columbia. [00:01:55] Speaker 01: And the clearly established question [00:01:59] Speaker 01: Can you name a case where a court held excessive force when an officer tackled someone who had just three seconds for struck another person repeatedly and who was still screaming threats at the person even after the strike? [00:02:21] Speaker 01: Who still had her guards up with regard to her posture? [00:02:25] Speaker 01: What's the closest precedent? [00:02:31] Speaker 03: There is no one individual case here. [00:02:35] Speaker 03: That's clear. [00:02:35] Speaker 03: But the case law can create a synthesis. [00:02:39] Speaker 03: And I think there are several cases that take it together. [00:02:42] Speaker 03: The first that I would point to is Smith v. Wright, the Fourth Circuit case. [00:02:49] Speaker 03: In that, the Fourth Circuit analyzed the situation where at the beginning, the young woman that the officer was arresting pulled back. [00:03:01] Speaker 03: jerked back from the police officer, and found that he reacted to that potentially dangerous situation for a police officer, but reacted in overwhelmingly physical way, and in fact escalated the violence, the capacity for violence, which is the case here. [00:03:20] Speaker 03: The second case I would point to is Young versus County of Los Angeles, in which the Ninth Circuit, like other sister circuits, [00:03:29] Speaker 03: Emphasize that the significant use of force without any warning whatsoever was a problem under the Fourth Amendment. [00:03:36] Speaker 01: That's not always the case, right? [00:03:38] Speaker 01: I'm sorry? [00:03:39] Speaker 01: It's not always the case that there has to be warning. [00:03:41] Speaker 01: I understand that you have a reasonable argument here that there should have been warning, but if I'm about to shoot someone, the officer doesn't have to, you know, give me a verbal warning before he stops me from shooting him. [00:03:58] Speaker 03: No, of course not. [00:03:59] Speaker 03: Um, but Ms. [00:04:01] Speaker 03: Kelly was nowhere near shooting something. [00:04:04] Speaker 03: Uh, the key under the fourth amendment is a proportionality. [00:04:09] Speaker 03: Uh, it's Graham, I think make clear. [00:04:12] Speaker 05: I'm confused by the record. [00:04:15] Speaker 05: What does, what does the record show that guards up means? [00:04:18] Speaker 05: I just thought having your guard up means you're alert. [00:04:22] Speaker 05: I didn't get anything to do with posture, right? [00:04:25] Speaker 05: You're, you're alert. [00:04:26] Speaker 05: You're acutely aware of. [00:04:27] Speaker 05: your environment, but everyone seems to think in this record, or at least in the briefing that guards up means something like hands up or ready to strike or I just, I'm not aware of that terminology. [00:04:41] Speaker 05: What does the record say that means? [00:04:46] Speaker 03: Thank you, your honor. [00:04:47] Speaker 03: I think that the record is somewhat unclear and that would be a material fact that we believe to go to the jury. [00:04:56] Speaker 05: Is there a dispute about it? [00:04:58] Speaker 05: What does Ms. [00:04:58] Speaker 05: Kelly? [00:05:00] Speaker 05: Ms. [00:05:00] Speaker 05: Kelly? [00:05:01] Speaker 05: Is it Lartasha? [00:05:04] Speaker 05: L-A-R-T-A-S-H-A. [00:05:07] Speaker 05: L-A-R-T-A-R-S-H-A. [00:05:09] Speaker 05: Okay. [00:05:10] Speaker 05: All right. [00:05:10] Speaker 05: Good. [00:05:10] Speaker 05: Thank you. [00:05:11] Speaker 05: There's been some confusion about that. [00:05:12] Speaker 05: I'm sorry to interrupt with that. [00:05:13] Speaker 05: I want to make sure we have it right out of respect for her. [00:05:17] Speaker 05: Yeah. [00:05:17] Speaker 05: So tell me what she says guards up means. [00:05:20] Speaker 05: Where's the disputed fact? [00:05:22] Speaker 03: Ms. [00:05:23] Speaker 03: Kelly described her position. [00:05:25] Speaker 03: as one where her hand remained, I can confess your honor, I'm not a boxer. [00:05:31] Speaker 03: So, but where her hand remained up to block any blows, whereas her other hand was gap. [00:05:38] Speaker 05: So she was still- And where does the records say that she had it up to block blows? [00:05:45] Speaker 03: I don't think she used that exact language. [00:05:49] Speaker 02: I'm sorry. [00:06:03] Speaker 02: But did she say it was up defensively or anything like that? [00:06:08] Speaker 03: She had described it as defensively. [00:06:10] Speaker 03: I'm sorry, your honor. [00:06:11] Speaker 03: I don't have records up the top of my head. [00:06:15] Speaker 03: I'd be happy to discuss that during my rebuttal time. [00:06:19] Speaker 05: That might be helpful, because it's just something that has very much confused me. [00:06:22] Speaker 05: But I didn't see anything strictly clarifying in her deposition other than that she had one hand up. [00:06:29] Speaker 05: And maybe that's why. [00:06:31] Speaker 05: I'm not a boxer either, so I don't know what guards that means either. [00:06:33] Speaker 05: I had a more colloquial understanding of the phrase. [00:06:37] Speaker 04: What should we make of the police's procedures or policies in this case in terms of any notice or awareness of the officer's duties in response? [00:06:47] Speaker 03: Thank you. [00:06:49] Speaker 03: Paul, of course, this court or any court doesn't defer to a policy in interpreting the Constitution. [00:06:57] Speaker 03: helpful to look to the District of Columbia's policies where it explicitly said in describing Graham and the constitutional duty that an officer should attempt to work his or her way up the use of force continuum and start with something like a command presence, followed by verbal warnings, moving to some amount of force, possibly [00:07:24] Speaker 03: more extreme physical force like in this case, which would be appropriate in say the Dykes case where the suspect was running to the sorts of lethal force that might have to happen in a lethality situation. [00:07:42] Speaker 01: I switch gears a little bit and ask about the battery flame and in particular [00:07:48] Speaker 01: how qualified privilege is or is not similar to qualified immunity under the 1983. [00:07:59] Speaker 01: Well, we'll just start with this question. [00:08:01] Speaker 01: Are they, do you view them as same or different? [00:08:07] Speaker 03: I view them as 99.9% the same, your honor, in the theoretical situation that we don't claim we have here. [00:08:17] Speaker 05: It is possible. [00:08:18] Speaker 05: I just want to clarify that answer. [00:08:20] Speaker 05: Is this case in that point one percent or no? [00:08:24] Speaker 05: No, this is this case is in the ninety nine point nine percent where it's correct. [00:08:30] Speaker 03: I'd like to reserve the rest of my time for rebuttal, but I'd also like to answer that question for Judge Walker. [00:08:35] Speaker 05: Please go ahead and answer. [00:08:39] Speaker 03: It is theoretically possible that an officer could say. [00:08:42] Speaker 03: After a use of force, [00:08:46] Speaker 03: in a use of force report. [00:08:47] Speaker 03: I knew that was unconstitutional, but I did it anyway, because I thought it was the right thing to do. [00:08:52] Speaker 03: And a court later determines that that was not unconstitutional. [00:08:55] Speaker 03: It was a constitutional, proportional use of force under the fourth amendment. [00:08:59] Speaker 03: That we'd still not be entitled to qualified privilege under the District of Columbia law, because there's both a subjective and objective prong placed here. [00:09:09] Speaker 03: We have no evidence that the officer had to have said anything like that or thought it. [00:09:13] Speaker 05: But the objective prong under district law is much narrower, right? [00:09:18] Speaker 05: Under qualified immunity, you have to not only, for someone to be denied qualified immunity, you have to show both that they acted unreasonable and it was unreasonable for them to think that they acted reasonably. [00:09:31] Speaker 05: So it's like a reasonable is squared. [00:09:35] Speaker 05: That is not the law in the District of Columbia. [00:09:38] Speaker 05: All it is, is that first inquiry, the objective, [00:09:41] Speaker 05: reasonableness inquiry. [00:09:43] Speaker 05: So I'm very curious about your 99% overlap, because I see the DC Court of Appeals saying exactly the opposite. [00:09:52] Speaker 05: And in fact, in cases recognizing that you can have, even when an officer gets qualified immunity, they may not get qualified privilege. [00:10:00] Speaker 05: I'm really shocked with your answer, I have to say. [00:10:02] Speaker 03: Thank you. [00:10:04] Speaker 03: I think that that is a good point. [00:10:05] Speaker 05: And I'm sorry that I. No, no, I'm not asking you. [00:10:08] Speaker 05: Why is everyone apologizing? [00:10:09] Speaker 05: It's your position. [00:10:10] Speaker 05: I'm just trying. [00:10:11] Speaker 05: And you're much more expert in this. [00:10:13] Speaker 05: I have not litigated in this area. [00:10:14] Speaker 05: So you're much more expert than me. [00:10:17] Speaker 05: So I was just a little surprised at the answer, because it seems both as articulated, it's a different test. [00:10:22] Speaker 05: And the case law seems a different. [00:10:24] Speaker 05: And I had read your brief as saying that even if we lose under qualified immunity, we can still go forward with the tort case under qualified privilege. [00:10:33] Speaker 05: You are much more expert than me, so please. [00:10:38] Speaker 05: Sorry, I over. [00:10:39] Speaker ?: That's correct. [00:10:41] Speaker 01: Mike, I don't know if you. [00:10:44] Speaker 01: Looked at it. [00:10:46] Speaker 01: It seems to me I was at the Lesby case that this court swing court after this court and it seems like the plaintiffs there made a concession similar to the one that you've made here. [00:10:58] Speaker 01: So not I agree with. [00:11:01] Speaker 01: I asked you the question because I think [00:11:03] Speaker 01: the DC court's language on this is not as precise as the 1983 language has become over time. [00:11:14] Speaker 01: And so I think it is sort of an open question. [00:11:19] Speaker 01: I don't know if that's the right way to put it, but I think your position is not unprecedented. [00:11:26] Speaker 01: This is what I would say. [00:11:29] Speaker 03: Your Honor. [00:11:32] Speaker 03: The briefing didn't focus on that issue. [00:11:34] Speaker 02: And if the court would like more briefing, we'd be happy to provide some. [00:11:42] Speaker 02: All right. [00:11:42] Speaker 02: Thank you very much. [00:11:43] Speaker 02: We'll give you a couple of minutes for rebuttal. [00:12:04] Speaker 02: May it please the court, Jeremy Gertchen for the appellees. [00:12:07] Speaker 06: The arresting officer in this case did not use excessive force when he quickly performed a takedown maneuver on Ms. [00:12:13] Speaker 06: Kelly after witnessing her repeatedly strike her neighbor in the face and threatened to continue her assault. [00:12:19] Speaker 05: Can you answer my back question about what the record says guards up means? [00:12:24] Speaker 06: Yes, your honor. [00:12:24] Speaker 06: So I think that's discussed in the district court's opinion at J 135 and J 128. [00:12:31] Speaker 06: And 128 cites the video taken at the hospital after, which is not in the joint appendix, but it is in the record in which she said that she had her guards up. [00:12:43] Speaker 06: And I think she actually motions and shows that she has her hands raised. [00:12:47] Speaker 05: That video is not in our record. [00:12:49] Speaker 06: It's not in the joint appendix, but it is in the district court's record. [00:12:52] Speaker 06: So I think it should be available to the court. [00:12:54] Speaker 06: But if there's some difficulty with that, we can. [00:12:57] Speaker 05: OK. [00:12:57] Speaker 05: That's helpful. [00:12:58] Speaker 06: Thank you. [00:13:02] Speaker 06: Even viewing all the disputed facts in Miss Kelly's favor, the amount of force used here was not objectively unreasonable under the circumstances. [00:13:11] Speaker 06: And even if the court found that it was questionable, the officer would still be entitled to qualified immunity because there is no clearly established law that would have prevented that action. [00:13:20] Speaker 04: But would those disputed facts be more right for a jury question? [00:13:25] Speaker 06: I don't believe there are any material disputed facts that weigh on either the excessive force question or qualified immunity, Your Honor. [00:13:33] Speaker 06: Ms. [00:13:33] Speaker 06: Kelly identified three reported disputes of fact in her brief. [00:13:40] Speaker 06: The first was whether she had used a slap or a punch, and the district court incorrectly said that that wasn't material because it was an assault either way and assumed it was a slap for the purpose of its analysis. [00:13:52] Speaker 06: The second was about whether her threats were genuine. [00:13:55] Speaker 06: And I think, again, that's not a disputed fact in the sense that the threat is reported. [00:14:00] Speaker 06: There's no dispute about what she said. [00:14:02] Speaker 06: And her subjective intent isn't relevant when you're looking at the case from the perspective of the officer reacting to those threats. [00:14:10] Speaker 06: And given the heated altercation and the actual strikes that she made, I think it would be perfectly reasonable for an officer to assume those threats were genuine. [00:14:19] Speaker 06: And then the third is whether or not she had terminated the confrontation. [00:14:22] Speaker 06: And I think that on that, the district court looked at the video and said clear from the video that the altercation hadn't terminated. [00:14:30] Speaker 06: There might be some dispute about whether she took one or two steps backward, but the altercation was still ongoing. [00:14:37] Speaker 06: And I think that's quite clear, especially when you think about how little time passed between when she struck her neighbor. [00:14:43] Speaker 05: That could all justify some use of force, but you have to, you know, just as long as we take those boxes, [00:14:50] Speaker 05: any forces justified. [00:14:51] Speaker 05: He couldn't have shot her, right? [00:14:53] Speaker 06: No, we do. [00:14:55] Speaker 05: Right, so we have to then ask whether the force chosen made any sense in this context. [00:15:02] Speaker 06: Yes, Your Honor, you do. [00:15:04] Speaker 05: Is that a law question or a fact question or a mixed question? [00:15:08] Speaker 06: I think it's a law question, your honor, about whether or not the force, the use of force was reasonable under the circumstances and as a totality of the circumstances test. [00:15:17] Speaker 05: But here there's, there are facts infused with it. [00:15:19] Speaker 05: For example, he said he had to use his high school football tackle technique because he was afraid of being assaulted. [00:15:28] Speaker 05: But then the only evidence in the record he had for that was that she turned her head toward me. [00:15:37] Speaker 05: She turned all she did with respect to you is turn her head. [00:15:40] Speaker 05: I'm reading from his deposition. [00:15:41] Speaker 05: Yes. [00:15:42] Speaker 05: And you think that presenting a fighting stance towards you? [00:15:45] Speaker 05: Yes. [00:15:46] Speaker 05: But a reasonable jury doesn't believe him. [00:15:48] Speaker 05: A big officer like him that if a small woman turns her head, that's posing a risk of assaulting the police officer. [00:15:57] Speaker 06: I think a jury could certainly disbelieve his testimony that she even turned her head, but I think that didn't change the excessive force. [00:16:05] Speaker 04: Why would you also have a person who's right in the middle of them too? [00:16:09] Speaker 04: If you add that back down to what Judge Malik said. [00:16:12] Speaker 06: Yes, sir. [00:16:12] Speaker 06: And we don't dispute that a gentleman step between, but I think we have to remember that the time between when she hit her neighbor in the face, she screamed her threats again and the officer intervened and that all took three seconds. [00:16:24] Speaker 06: That's all they know. [00:16:25] Speaker 05: But in that same time, there was a gentleman standing in between them. [00:16:29] Speaker 05: And so the question is, he said he had to do the tackle because he didn't want to be assaulted. [00:16:36] Speaker 05: That's the rationale he gave for that technique. [00:16:39] Speaker 05: And if a jury could disbelieve, it's just unreasonable, almost infeasible to think that an officer would consider that he was about to be attacked with this gentleman there in between them. [00:16:51] Speaker 05: And all she did was not her hands towards him, [00:16:54] Speaker 05: but her head towards him, then isn't that, how is it then reasonable to think that the really ferocious amount of force used, I mean, there were gasps and a curse word used in response to it by the people present. [00:17:14] Speaker 05: So why was that as opposed to grabbing her arms? [00:17:19] Speaker 06: But your honor, I think that his testimony, if I'm recalling his deposition correctly, was that the reason he didn't use an arm bar takedown or a different type of physical technique was because he didn't want to be assaulted. [00:17:29] Speaker 06: So I think that was context in which he made that statement. [00:17:32] Speaker 06: But again, this is a pretty chaotic scene. [00:17:36] Speaker 05: They were called- Right, but it was just not credible that he was afraid of really being hurt by this woman, so much so that he had to use a completely unauthorized technique [00:17:49] Speaker 05: I just don't even understand that as an answer to why he couldn't really have just said freeze or grabbed her arm and pushed her to the ground with the one arm technique or just bear hugged her like he started before he tackled and stopped right there. [00:18:02] Speaker 05: She wasn't going to break out a bear hug from him. [00:18:05] Speaker 06: Well, Your Honor, I think that the question isn't whether or not [00:18:10] Speaker 06: In hindsight, another use of force would have been. [00:18:13] Speaker 05: No, I'm not. [00:18:14] Speaker 05: I totally respect that. [00:18:15] Speaker 05: I completely get that point. [00:18:17] Speaker 05: But this is right there in the moment when this is not, you know, they're not at each other's throats. [00:18:22] Speaker 05: They're separate. [00:18:23] Speaker 05: If they were at each other's throats, if there were any kind of weapon involved, all those there's so many factors that would be completely consistent with that theory. [00:18:30] Speaker 05: That isn't what we have. [00:18:32] Speaker 05: And this whole reason he says I had to do this technique [00:18:36] Speaker 05: rather than something else. [00:18:38] Speaker 05: To be fair, he said pepper spray because everyone was close together. [00:18:40] Speaker 05: So that means he couldn't do pepper spray, I get that. [00:18:43] Speaker 05: But he then, between pepper spray and this bear hug tackle fall on top of her, the only explanation he gives is, I didn't want to get assaulted. [00:18:53] Speaker 05: And the only risk of assault he identifies is she turned her head towards him. [00:18:58] Speaker 06: Well, I think the risk of assault is that she was actively assaulting another person. [00:19:01] Speaker 05: She wasn't actively assaulting anyone at the time. [00:19:04] Speaker 06: Well, if you if you review the video, the court can review it for itself, but she strikes her neighbor in the face. [00:19:10] Speaker 06: She's screaming profanities. [00:19:12] Speaker 06: She's obviously agitated and obviously agitated. [00:19:17] Speaker 05: Right. [00:19:18] Speaker 05: I just think obviously agitated is different than actively assaulting somebody. [00:19:22] Speaker 05: Unless you're just talking about the assault of the words at that point, the threats. [00:19:26] Speaker 06: Well, she's continuing to say that she's going to beat up her neighbor, even after striking her neighbor. [00:19:32] Speaker 06: So I think it is a real stretch to say that in that three second period that there had been a cooling off and that she was no longer posing a threat to anybody. [00:19:42] Speaker 06: I think that's a real stretch of what the video shows. [00:19:45] Speaker 01: I think we can agree she had not cooled off. [00:19:47] Speaker 06: Yes. [00:19:48] Speaker 05: So so I think that, you know, we also agree that those videos are [00:19:54] Speaker 05: Pretty difficult to discern everything that's going on and even who is who, quite frankly. [00:19:58] Speaker 06: I think I agree it's a chaotic situation. [00:20:00] Speaker 05: No, no, no, no, no, no. [00:20:01] Speaker 05: That's not what I just said. [00:20:02] Speaker 05: I didn't say the situation was chaotic. [00:20:04] Speaker 05: I said the videos are quite grainy and difficult to discern a whole lot of anything other than you can see the gentleman stepping in between them. [00:20:14] Speaker 06: I agree that, I mean, it certainly was at night. [00:20:17] Speaker 06: It's difficult to make out all of the details in the video, but I think that they do make clear that this was a heated altercation. [00:20:23] Speaker 06: They had just arrived on the scene. [00:20:25] Speaker 06: They'd been called to report of domestic violence. [00:20:27] Speaker 06: They witnessed someone, you know, screaming profanity, saying she's going to beat her up, and then she starts doing it. [00:20:33] Speaker 06: And then she says she's going to do it again. [00:20:34] Speaker 06: And I think it is reasonable for an officer in that circumstances to execute. [00:20:38] Speaker 05: To use force, absolutely, of some level. [00:20:41] Speaker 05: Are there any cases [00:20:44] Speaker 05: to talk about what happens when the use of force is one that's just not even authorized by the police department? [00:20:50] Speaker 06: Well, Your Honor, I don't think I would agree that this use of force wasn't authorized by the police department. [00:20:54] Speaker 06: The Internal Affairs Division reviewed it and said that it was an acceptable use of force under the policy. [00:21:00] Speaker 05: Do they train them on tackles, on full-body tackles? [00:21:04] Speaker 06: I believe that Officer Gatton said that he was trained on tackle takedowns at the Academy, as well as other forms of takedowns, including arm bars, [00:21:13] Speaker 05: Plenty of other forms of takedown. [00:21:15] Speaker 05: I was, I had thought the record was that this tackling thing was not something the district, so the district trains people to train them on tackling. [00:21:23] Speaker 06: I believe that was his testimony, Your Honor. [00:21:25] Speaker 04: And I don't think- How does the export report factor in? [00:21:28] Speaker 06: So the expert reports speak about both the constitutional standard and the internal policy. [00:21:34] Speaker 06: And what we're focused on here is the constitutional standard. [00:21:36] Speaker 06: So I'm not sure that they really shed that much light on that standard, which is just a legal one for the court. [00:21:44] Speaker 06: But as my colleague Golden talked about, they do talk about a continuum, of course. [00:21:50] Speaker 06: But I would disagree that they say that the officer must use less intrusive means first. [00:21:56] Speaker 06: Depending on the situation, they're certainly authorized to use force immediately if necessary. [00:22:01] Speaker 06: You know, you think about something like... But still proportional. [00:22:05] Speaker 06: Still proportionally, yes, Your Honor. [00:22:06] Speaker 06: But it doesn't... They don't have to exhaust all of the less intrusive options first. [00:22:11] Speaker 06: They can use the level of force that's appropriate under the circumstances. [00:22:14] Speaker 06: And district law acknowledges that anybody can use force to repel an assault, not just an officer. [00:22:20] Speaker 06: So I think that we're in a situation where the level of forced use was reasonable under the circumstances. [00:22:26] Speaker 05: But even if there was. [00:22:27] Speaker 05: I just want to clarify one thing that I think I understand what you're saying is that the choice of forced use was stopped. [00:22:34] Speaker 05: the assault. [00:22:35] Speaker 05: It wasn't to effectuate the arrest. [00:22:36] Speaker 05: It was to stop the assault and then presumably the arrest would happen afterwards. [00:22:39] Speaker 06: Yes, your honor. [00:22:40] Speaker 06: So he used that was his testimony that he used the force he felt was necessary to stop the assault from continuing. [00:22:46] Speaker 06: And then the arrest happens immediately after there's no additional force applied beyond handcuffing. [00:22:54] Speaker 01: At what moment in time do we judge whether the [00:23:00] Speaker 01: Officer made a reasonable decision to use the force he is so I can imagine we we look to the moment in time when the tackle happened. [00:23:11] Speaker 01: Or I can imagine we look at the moment in time a little bit earlier when the officer decided to make the tap. [00:23:18] Speaker 06: I think it's the latter, your honor. [00:23:19] Speaker 06: And to the extent I think it's even difficult to say that those are really even separate in time because so quick, but I think if you're separating three seconds, three seconds. [00:23:28] Speaker 06: But I think it's the moment he makes the decision, which what's your support? [00:23:33] Speaker 06: So, um, [00:23:35] Speaker 06: I guess I'm not aware of a case where you have kind of that potential delta in time, but you're looking at the officer's reasonableness in the decision that he's making. [00:23:46] Speaker 06: So I think it would be natural to focus on the time when he made the decision. [00:23:49] Speaker 05: Well, wait a minute. [00:23:51] Speaker 05: Someone says drop the gun, and that only takes probably less than three seconds. [00:23:57] Speaker 05: And the person does drop the gun, it's still okay for the officer to shoot him because he made the decision before that command was issued to shoot him. [00:24:04] Speaker 05: Because he was about to shoot someone else. [00:24:07] Speaker 06: I think it would be inconsistent to say that he made the decision. [00:24:11] Speaker 05: Don't we have to look at the time they actually applied the force because things can change quite materially. [00:24:16] Speaker 05: Would it be okay to shoot someone after they've dropped the gun? [00:24:19] Speaker 05: No, Your Honor, but I think that the statement... Even if they decided to shoot them before they dropped the gun? [00:24:25] Speaker 06: Well, I think the hypothetically opposed was that he issued a command and issuing someone else's drop the gun. [00:24:31] Speaker 05: He's he's he's about to shoot this person. [00:24:34] Speaker 05: I've got I've got to shoot him as he's thinking that someone else's shout and drop the gun guy drops. [00:24:39] Speaker 05: He's already made the decision. [00:24:41] Speaker 06: I think in that circumstance, if a different officer was shouting a command and the officer didn't have time to change his decision, then yes. [00:24:50] Speaker 05: I didn't say he didn't have time. [00:24:51] Speaker 05: The gun's dropped. [00:24:52] Speaker 05: He's got time. [00:24:53] Speaker 05: You're telling me which time we look at the decision. [00:24:56] Speaker 05: And that seems to me quite an extraordinary position on the part of the government because it would say, in my hypothetical, it was okay to go ahead and shoot him after the gun was dropped. [00:25:07] Speaker 06: Well, I think as I understood the hypothetical, it was that there was a decision made to fire. [00:25:12] Speaker 06: There was a delay during which someone instructed someone to drop the gun and the gun is dropped. [00:25:18] Speaker 05: Yeah, that same delay is happening while he's getting his gun out. [00:25:21] Speaker 05: I'm going to have to shoot this person. [00:25:22] Speaker 05: He's pulling his gun. [00:25:23] Speaker 05: Same second someone says drop the gun and he drops it. [00:25:27] Speaker 05: By the time he gets it up here, it's dropped. [00:25:29] Speaker 06: I mean, I think that would be a difficult hypothetical to say that the decision had already been made and it shouldn't have been changed in that interim. [00:25:35] Speaker 06: Here, I think it's a little bit different in that the officer is running and Mr. Gruden, this is not a perfect analogy to the tackle. [00:25:42] Speaker 01: So I'm not pretending it is. [00:25:45] Speaker 01: Do you watch baseball ever? [00:25:48] Speaker 01: Never seen a batter swing at a pitch that's way out of the strike zone by the time it crosses the plate. [00:25:58] Speaker 01: Yeah. [00:25:59] Speaker 01: Because the decision to swing is made a little bit before the time when he actually would make contact with the ball, right? [00:26:06] Speaker 01: Now, I'm not saying it's a three-second delay like in this case. [00:26:08] Speaker 01: Maybe this case is more analogous to the shooting of the gun thing. [00:26:11] Speaker 01: But it does seem like the only thing we can ask an officer to do is make a right decision at the time that we would expect the officer to begin the movement of the cap. [00:26:26] Speaker 06: I think that's right, Your Honor. [00:26:28] Speaker 06: I think the video evidence shows that because both officers began running the moment that Ms. [00:26:32] Speaker 06: Kelly began striking her neighbor. [00:26:33] Speaker 06: And so I think that's pretty clear when the decision was made. [00:26:36] Speaker 06: And the only issue is whether in those three seconds there was a sufficient change in circumstances that would have, as a constitutional matter, required him to stop or change his behavior or change his decision. [00:26:47] Speaker 06: And I just don't think that there was sufficient time. [00:26:49] Speaker 05: He attached stops and they're separated by another person. [00:26:52] Speaker 05: That's not enough of a material change. [00:26:54] Speaker 06: I don't think it is, Your Honor. [00:26:56] Speaker 06: I think because she was still posing a threat to other individuals, she was still cursing and saying she was going to beat her up. [00:27:02] Speaker 06: And the confrontation hadn't ended. [00:27:04] Speaker 06: So I don't think there really was a material change. [00:27:06] Speaker 06: But even if the court was concerned about that, I think we would still be in the land of qualified immunity. [00:27:11] Speaker 06: And the court asked Ms. [00:27:13] Speaker 06: Golden, what's the case? [00:27:15] Speaker 06: And she wasn't able to provide you one that's remotely similar to a circumstance like this, where the officers witness an assault [00:27:23] Speaker 06: That's essentially ongoing. [00:27:24] Speaker 06: I mean, perhaps the court would say that there's some dispute about that, but it's almost immediate. [00:27:30] Speaker 06: And there's just no case like that in this circuit or any other. [00:27:34] Speaker 06: So we would still be in the land of qualified immunity. [00:27:37] Speaker 04: A couple of questions. [00:27:38] Speaker 04: One is, it was asked earlier about distinctions between qualified immunity and the qualified privilege. [00:27:44] Speaker 04: Do you want to speak to that? [00:27:45] Speaker 06: Yes, thank you, Judge Childs. [00:27:46] Speaker 06: I think that Ms. [00:27:48] Speaker 06: Golden has always presented in her briefs [00:27:52] Speaker 06: In terms of the objective prong of the district's test, that they rise and fall together in this case. [00:27:57] Speaker 06: And I think she reaffirmed that view here. [00:28:00] Speaker 06: I think we all agree that there is a subjective prong as well. [00:28:03] Speaker 06: And that prong has never been contested in this case. [00:28:07] Speaker 06: So our view is that they would rise and fall together. [00:28:09] Speaker 06: And I think in response to Judge Mallette, your question about, you know, is there a difference [00:28:16] Speaker 06: on the objective prong, there isn't. [00:28:18] Speaker 06: Jenkins speaks about this, and it says that there's two ways for the objective prong to be analyzed. [00:28:25] Speaker 06: One is that there's no constitutional violation. [00:28:27] Speaker 06: So that's the same as in the qualified immunity test. [00:28:30] Speaker 06: And the second is whether the officer reasonably could have understood what they were doing. [00:28:36] Speaker 05: I'm sorry, Jenkins is a DCCA case? [00:28:38] Speaker 06: Yes, that's a DCCA case, Your Honor. [00:28:44] Speaker 05: Jenkins versus [00:28:45] Speaker 06: So we, we cited it in our brief and I think. [00:28:48] Speaker 06: Oh, I got it. [00:28:49] Speaker 06: I've got a 223 383 884. [00:28:53] Speaker 06: Um, and so it, so it describes it very similar to the qualified immunity analysis that you can have qualified immunity simply because you didn't violate the constitution or because a reasonable officer would have thought. [00:29:05] Speaker 05: That was a false arrest case, not an excessive force one. [00:29:09] Speaker 05: And the DCCA has already said those are the same, but has not. [00:29:12] Speaker 05: In fact, it said there is indicated they're different. [00:29:15] Speaker 05: in the scales case, I think, when it comes to reasonableness of course, because you've got the reasonableness squared under the qualified immunity that you don't have under DC law. [00:29:27] Speaker 06: I think I would respectfully disagree. [00:29:28] Speaker 06: I think you do have the reasonableness squared in the district's qualified privilege standard, because that's what Jenkins says. [00:29:35] Speaker 05: No, they said that for false arrest, and they've said their false arrest standard is nearly identical, because you've got the whole probable cause thing going on. [00:29:42] Speaker 05: It's nearly identical to the federal one, but they have not said that for excessive force. [00:29:46] Speaker 05: They've said the opposite. [00:29:49] Speaker 05: There can be different constitutional standards for different issues, and some of them can be the same, the way they end up getting applied in some difference. [00:29:56] Speaker 06: Jenkins doesn't speak to excessive force being [00:30:12] Speaker 06: pat down in that case and said, there was no clear rule that would have put the officer on notice. [00:30:17] Speaker 06: And I think that's very similar to qualified immunity analysis. [00:30:21] Speaker 04: When we're looking at constitutional violation, you've got to look at it for Fourth Amendment, filled with the 1983 claim and then qualified immunity. [00:30:30] Speaker 04: But then you're also looking at constitutional violation for battery. [00:30:35] Speaker 04: How are we approaching that? [00:30:36] Speaker 04: You said law on the Fourth Amendment violation, but what about [00:30:41] Speaker 04: whether or not it's a legal question on the battery issue. [00:30:46] Speaker 06: Your Honor, the District of Columbia battery claim essentially maps onto the Fourth Amendment analysis here because the analysis would be that an officer commits a battery unless they didn't violate the Fourth Amendment in doing so, or under the Jenkins qualified privilege test, it would be reasonable for an officer to think they were complying with [00:31:10] Speaker 06: So under either of those circumstances, you would find that there was qualified privilege. [00:31:15] Speaker 06: But I don't think there's really any delta between the two claims at issue here. [00:31:20] Speaker 06: And I don't think Ms. [00:31:21] Speaker 06: Kelly's ever argued that there should be a difference in how the claims are treated here. [00:31:29] Speaker 05: Unless the court has... I just had one more because JA 120, this is the government's filing the response. [00:31:37] Speaker 05: A football style tackle was not taught as a takedown technique at the DC Police Academy during the time Officer Gatton was there. [00:31:44] Speaker 05: I was trying to reconcile that. [00:31:46] Speaker 05: I think maybe I misheard or misunderstood what you were saying. [00:31:49] Speaker 05: I thought you said that this was a technique you would have learned at the Academy. [00:31:55] Speaker 06: The issue I think that we, the reason why we did not dispute that statement is I don't think we would have agreed with the football style language used there, but the takedown technique I think that he used was part of the academy, I believe was his testimony. [00:32:09] Speaker 05: I'm sorry, it just has a different name at the academy? [00:32:11] Speaker 05: What's it called at the academy? [00:32:13] Speaker 06: I think it's just called a solo takedown, which is how he described it in his... Did you just completely jump on somebody and flatten them to the ground? [00:32:21] Speaker 06: I think you you use kind of the bear hug style technique that he scribed and and and then they go to the ground. [00:32:28] Speaker 06: Yes. [00:32:29] Speaker 06: But I think we objected to the football style because I don't think that that's an accurate representation of what or how that's a rather misleading answer. [00:32:36] Speaker 05: Then is it not? [00:32:37] Speaker 05: Well, we do we teach exactly the same technique. [00:32:40] Speaker 05: We just don't call it that. [00:32:41] Speaker 05: It's very different than saying [00:32:42] Speaker 05: his football style takedown is not something taught at the Academy. [00:32:46] Speaker 06: Well, I don't think we said this, the statement is a football style takedown is what, what that statement was that we were disputing. [00:32:53] Speaker 01: So I think that's probably the reason. [00:32:57] Speaker 06: I don't believe we would describe it that way. [00:32:59] Speaker 05: Um, but that's how your officer described it. [00:33:03] Speaker 05: And so I'm sorry. [00:33:04] Speaker 05: So this was all justified about words, but you in fact, the DC police Academy teaches and approves of this exact technique. [00:33:12] Speaker 06: I believe that's correct, Your Honor. [00:33:14] Speaker 05: Where's that in the record? [00:33:16] Speaker 06: I believe that was in his deposition testimony, was that he used a take-down, solo take-down maneuver that he had been taught at the Academy. [00:33:23] Speaker 05: Where's that in his deposition? [00:33:25] Speaker 01: I don't have the exact record citation in front of me, Your Honor, but there's, it looks like Officer Gatton received 40 hours of instruction on take-downs while at the Academy, which is, you know, [00:33:39] Speaker 01: Then the next question is. [00:33:41] Speaker 01: This is. [00:33:44] Speaker 01: Sorry, I don't have a J a number, but. [00:33:47] Speaker 01: Football style was not taught was not taught. [00:33:52] Speaker 01: At the. [00:33:55] Speaker 01: So a tackle was taught football style tackle, not right. [00:33:58] Speaker 06: I think the objection was the football style language or honor. [00:34:01] Speaker 05: What other kind of tackle is there? [00:34:03] Speaker 05: How is what you said? [00:34:03] Speaker 05: The bear hogging down, which is exactly what he did here. [00:34:06] Speaker 05: So I'm understanding. [00:34:08] Speaker 05: if it is the exact same technique that he applied here. [00:34:12] Speaker 06: Yes, I mean, I don't think there's a dispute about that, but I think that the dispute is over the language football style that was introduced by the attorney in the definition. [00:34:22] Speaker 05: The government made clear it just didn't like the label, but the exact same motions and technique are exactly what they approve and authorize and train people on. [00:34:29] Speaker 06: Well, I think, Your Honor, if this was not an approved technique, I think it would have been noted in the Internal Affairs Department review, which it wasn't. [00:34:36] Speaker 06: I think it is reasonable to understand that it is tough, but that's not even really the test here. [00:34:41] Speaker 05: I'm sorry, are you making the inference from the IAD conclusion that it is a trained and authorized technique? [00:34:48] Speaker 06: I think if it weren't, then the IID report noted that. [00:34:53] Speaker 06: And I think that ultimately this is kind of all the side of the constitutional question of whether this was recently used as a force under the circumstances. [00:35:01] Speaker 06: That's not entirely mapped onto the internal policy. [00:35:04] Speaker 04: But even to get to the constitutional question, was the district court, in terms of getting it to a matter of law and then granting summary judgment and kicking the case out, having to weigh credibility determinations or making certain inferences [00:35:18] Speaker 04: that really are factual. [00:35:21] Speaker 06: I don't think so, Your Honor, and I would respectfully go back to the Graham factors, which I think talk about the severity of the crime at issue. [00:35:28] Speaker 06: That's not disputed. [00:35:29] Speaker 06: Whether she is disputed. [00:35:30] Speaker 06: That is disputed. [00:35:32] Speaker 06: The severity of the crime at issue? [00:35:33] Speaker 04: Yes. [00:35:34] Speaker 04: Claimants believes it's a lesser form of assault in terms of what the people were doing. [00:35:41] Speaker 06: Well, I mean, that might be her position, but I don't think that a reasonable officer on the scene would have been able to make a distinction like that. [00:35:48] Speaker 06: I mean, we granted to her that, you know, for the purposes of no weapons of any sort. [00:35:54] Speaker 06: Right. [00:35:55] Speaker 06: I don't think that's disputed either. [00:35:56] Speaker 05: No blood. [00:35:56] Speaker 05: The person didn't even fall down, didn't cry out. [00:35:59] Speaker 05: The minimus injury. [00:36:01] Speaker 06: All of those facts would have been known after the incident. [00:36:04] Speaker 05: Oh, at the time. [00:36:05] Speaker 05: They weren't even running at this point. [00:36:08] Speaker 05: Right. [00:36:08] Speaker 05: This is what happens when she's lapping them. [00:36:11] Speaker 06: I think given the amount of time that this incident took, it would be difficult for an officer to have assessed whether Ms. [00:36:17] Speaker 06: Sims was bleeding or injured or any of those facts wouldn't have been known within the three second time frame we're talking about here. [00:36:24] Speaker 04: But we said for the purpose of the summary... But there was no actual observation that they were there. [00:36:30] Speaker 04: Those facts did exist. [00:36:32] Speaker 06: No, I think he just observed that she was striking the neighbor in the face, that it was a heated confrontation, that there were [00:36:40] Speaker 06: that she was screaming and swearing. [00:36:42] Speaker 06: And that's the information he had available to him at the time. [00:36:47] Speaker 06: But I think if there are any questions about whether the use of force here was reasonable, I still think we have a problem with qualified immunity, where you don't have any case that would have put an officer on notice. [00:36:56] Speaker 06: If the court wants to establish that case law here, it could do so. [00:37:00] Speaker 06: But it would be the first time that this court has ever said that this type of force would have been unreasonable. [00:37:07] Speaker 01: You don't want us to. [00:37:09] Speaker 01: No, your honor, because we don't we don't think there was a constant if you were being slapped twice and then someone was saying after she slapped you, I'm going to beat the blank out of you blank and only three seconds have passed. [00:37:21] Speaker 01: Would you want the officer to tackle the person? [00:37:25] Speaker 01: Of course, your honor. [00:37:26] Speaker 06: And I think that that was part of his job to tackle the person or just to stop the person. [00:37:31] Speaker 06: In this, I don't think there's really a way to make a distinction between that. [00:37:34] Speaker 05: Well, the victim might want you to shoot that person. [00:37:38] Speaker 05: I might want you to shoot that person. [00:37:40] Speaker 06: I don't think that anyone contends that that would have been a reasonable response, Your Honor. [00:37:43] Speaker 06: But I think that pulling her away with a bear hug tackle and taking her to the ground through takedown would have been an appropriate response. [00:37:53] Speaker 06: And even if there was some question, I think you would have to re-examine some of the support to our cases about takedowns. [00:38:00] Speaker 06: in which far less violent and severe crimes are met with a similar response. [00:38:05] Speaker 06: Um, and the court said that there wasn't fourth amendment. [00:38:08] Speaker 01: Is the officer allowed to entertain the possibility that the attacker is armed? [00:38:14] Speaker 01: I'm not, I'm not, or is it, we now know she wasn't. [00:38:18] Speaker 01: So do we have to, um, do we have to pretend the officer was a hundred percent sure she was not? [00:38:26] Speaker 06: I don't think you have to pretend that, Your Honor. [00:38:28] Speaker 06: I think he agreed that he didn't see any weapon when he made his decision. [00:38:32] Speaker 06: But the situation unfolded so quickly, I don't think that it would be necessarily clear to an officer that the fight wouldn't escalate further. [00:38:41] Speaker 06: And so I think he was reasonably responding and saying, I need to intervene and stop this right now before it does escalate. [00:38:49] Speaker 06: Unless the court has any further questions. [00:38:52] Speaker 05: Thank you. [00:38:52] Speaker 05: The case is not submitted. [00:38:54] Speaker 05: We have our battle time. [00:38:55] Speaker 05: Excuse me. [00:38:58] Speaker 05: Ms. [00:38:58] Speaker 05: Golden, we'll give you two minutes. [00:39:03] Speaker 03: I first wanted to clarify that the record site for Ms. [00:39:07] Speaker 03: Kelly describing what she had done was A78, where in her deposition where she says she had pulled back. [00:39:17] Speaker 03: I agree, though, this is one of many areas that require more factual development, and that this is exactly why this case was not proper for disposal and summary protection, and that we needed full testimony and a fact-finder, a jury, to figure out what happened. [00:39:44] Speaker 03: I'd also like to highlight the point of [00:39:49] Speaker 03: the officer's reaction in the three seconds, and point out that this court's case in Slice versus DC made very clear that, although that was a lethal use of force, that a use of force permission only exists for as long as the threat exists. [00:40:12] Speaker 03: And here, Miss Kelly had stepped back. [00:40:15] Speaker 03: There was another gentleman between them, everybody else around. [00:40:20] Speaker 03: Reacted as if there was not need to take her down with what we would in fact characterize as a football style tap. [00:40:32] Speaker 03: If there are no further questions. [00:40:34] Speaker 02: Thank you very much. [00:40:35] Speaker 02: Now the cases.