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Case number 23-3074 et al.

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United States of America versus Jeffrey Scott Brown at balance.

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Mr. Madden for balance Jeffrey Brown.

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Mr. Boyle for balance Peter Schwartz.

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Mr. Schieffelbein for balance Marcus Malley.

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Mr. Andrews for the appellee.

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Morning counsel.

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Morning your honors.

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We please the court Jerry Madden on behalf of Jeffrey Scott Brown.

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There are two issues in this appeal.

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First is whether the court abused its discretion because the sentence to Mr. Brown was disproportionate to other more culpable bad actors.

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The second is whether the enhanced sentence for using a deadly and dangerous weapon was error.

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We'll rely on our brief as to the first issue and focus on the enhanced sentence.

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Mr. Brown was convicted of violating 18 USC 111A, which makes it illegal to forcibly assault a government official

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involved in the performance on official duty.

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Mr Brown received an enhanced sentence under section 111 B using pepper spray.

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Enhanced sentence is appropriate where the weapon is used.

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Does it where there's a use of a deadly or dangerous weapon in violation of 111 A district court denied the motion for acquittal saying only that the pepper spray could have reached the officers court did not go through the analysis.

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It should have under Erickson

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under the United States v. Arrington from this court in 2020, all it ruled was pepper spray could have reached the officers.

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Of course, this court applies the same standard, and the standard is considered the light most favorable to the government.

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Could a reasonable jury have concluded that an element was proved beyond a reasonable doubt?

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Under Arrington, there's a three-part test.

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The first step is to decide whether pepper spray is inherently dangerous.

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If it is not, then the second step is the object must be capable of causing serious bodily injury or death to another person.

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And if the answer to that is yes, the government still needs to prove that, in fact, the defendant used the weapon in that manner.

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So step one, pepper spray is not inherently dangerous.

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The testimony of the Metropolitan Police Department was uniform that pepper spray

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can be used in the lowest level of enforcement.

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It's not inherently dangerous when used in certain ways, but it is inherently dangerous when used in other ways.

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Exactly, Your Honor.

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Okay, so then it was a fact question for the jury whether it was used, essentially did they have to decide whether it was used in a way that made it inherently dangerous or not?

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Correct, so.

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And then they found that it was, the record at least, we assume the facts are the light most favorable to their verdict.

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And so it was used, if they could find that it was used within the dangerous distance, so too closer than the footage that's deemed to not have such risk, then they could have found

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It was used in a dangerous way, perhaps.

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Yes.

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And the question is whether a reasonable juror, a reasonable juror could have found that pepper spray the way it was used was deadly or dangerous.

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And so what I think they defined was how close the folks were to the officers.

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Right.

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Exactly, Your Honor.

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So my client, first of all, was there for a very short period of time.

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Somebody hit him and came to spray.

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Short doesn't really matter.

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That's true.

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You can do it in a second.

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I can understand.

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But he was at least three rows behind the police blocking the tunnel.

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Somebody handed him a can of spray, he sprayed it in the air.

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And so the question is that, is that using?

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If you look at that video and you think that it looks like it's less than three feet, then your client, the verdict would be appropriate, correct?

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No, I don't think so, no.

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Would you just agree that if it was used in a way that, used in an unsafe way, that it would be a dangerous weapon and closer than three feet to somebody,

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Yeah, sure.

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The testimony of the police officers is that it can be used in the lowest level enforcement.

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You spray somebody in the eye.

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It's not going to cause permanent eye damage.

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It's not going to cause extreme physical pain.

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It can and it can.

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No, but there's no testimony that there was a 9 out of 10 pain level.

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The testimony from the police officer, one of them was that was there another one who said it was a 9 out of 10?

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No, no.

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No, if even if you even if the police officer with three feet away.

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and he sprayed it at the police officers without any effective gear, that still wouldn't have been deadly or dangerous within the meaning of the jury instructions on what that means, physical, severe physical injury, because these officers were wearing helmets, face masks, gas masks.

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Was every officer wearing a helmet?

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Was every officer wearing a face mask that was down?

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At that time, yes, Your Honor.

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But if the videos showed otherwise and the jury could conclude it was dangerous,

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But the video didn't show otherwise.

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I saw the videos too.

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So the videos showed otherwise and they concluded it was dangerous, right?

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I'm just asking.

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I don't believe, no.

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I mean, I don't believe that's true.

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You can't say I'm reliant on the fact that they were wearing protective gear if you say even if they weren't.

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If a jury could have looked at the video and found an officer or so that had a visor up or didn't have a helmet on.

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Is your position still?

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No, the position is that using a regular can of pepper spray within three feet is what police officers do all the time.

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It's not... Less than three feet.

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It wasn't less than three feet.

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There's nothing in a record that shows less than three feet.

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And even if it was, a can of pepper spray cannot... The record didn't have a measure, as it was, and it turned out nobody had measuring tapes on January 6th.

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And so the question is whether the jury looking at the video could have thought it was within that close distance.

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I disagree, Your Honor, because, again, pepper spray in itself is not deadly or dangerous.

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It only becomes deadly or dangerous if something called hydraulic needling occurs, which was the uniform testimony to police officers, and that is when you use it on, you have a can that shoots like 12 feet or a can that shoots three feet.

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It's only deadly or dangerous if hydraulic needling actually occurs.

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That's the position?

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If it could occur, if it could occur and the evidence was that it could not occur with the way he did it, it's just not possible.

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And there is unreasonable.

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What about, would you agree that if it caused nine out of 10 pain, would that count as a dangerous weapon?

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No, it has to, if you have to look at the words.

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Pain level is irrelevant?

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The definition in the model jury instructions are serious bodily injury is,

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Because death, unconscionable, extreme physical pain.

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OK, so is 9 out of 10 extreme physical pain?

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9 out of 10, 10 is a max on the pain scale.

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I think you have to read that in the context of death or dismembering.

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I understand.

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So is 9 out of 10 on physical pain, does that qualify?

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Would a jury decide that qualifies?

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I do not look.

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I was I've been subjected.

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No, I don't believe so.

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So we would have to write that as a matter of law, nine out of 10 is not sufficient.

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When I am saying your honor is that the testimony was a normal can of pepper spray.

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Please use it in the least situation of an enforcement within three feet in people's right in their face.

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That did not happen here because it did not happen here.

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There could not be any dangerous use within the meaning of what is serious bodily injury.

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You have to read those words together.

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We're talking about death, blinding someone, severe physical pain.

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You know, you cannot read that.

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You can't read that disproportionate to death, right?

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No, but I'm just asking the factual question here, or I guess the legal question, because he wants us to overturn a jury verdict as unsupported as a matter of law.

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is what you wish us to do.

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And there was testimony in this case that an officer who had was hit with this pepper spray had nine out of 10 pain.

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But that was not an officer who was in that line were my clients.

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I'm not sure that the jury is required to sort that and say that this stuff is capable of capable.

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It doesn't actually have to cause the pain.

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Your client doesn't actually have to inflict the pain to be guilty.

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It just has to be capable of inflicting it.

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So I just trying to understand your position.

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The testimony about nine out of 10.

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It's very simple.

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What do I do with that?

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If there's a window here and I use pepper spray and you're behind it, that's not using it in a deadly or dangerous manner.

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If I hold it in the air and you're wearing a mask, which they were, and you're three feet away, that's not going to do.

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If it burns you, if it makes your eyes water, that's not causing extreme physical pain.

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You have to read those words together.

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You can't separate and say, well, it was painful.

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If it were that painful, police wouldn't be allowed to use it for the most minimal level of enforcement.

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Try again.

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So if you spray it, it turns out there's some cracks or some air ventilation.

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It brings it around to me.

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I say that I had nine out of 10 pain from it.

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I don't believe any officer who was in that line where my client was testified that they had any pain.

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They don't have to.

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They don't have to.

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They're just capable of sort of an objective test.

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So I'm just asking you a question again.

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You sprayed, there's a crack, the ventilation, it brings in my eyes, and it turns out for me it's a nine out of 10 pain.

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As a matter of law, it doesn't count.

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has to be used in a manner that could cause injury and you know it can't cause injury, then it's not deadly or dangerous.

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Period.

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That's our position.

[00:10:04] Speaker 07:
Thank you.

[00:10:15] Speaker 03:
Mr Boyle.

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May it please the court.

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My name is Dennis Boyle and I represent Peter Schwartz.

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I'd like to reserve two minutes for rebuttal if possible.

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Are you all three doing rebuttal?

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Are you all three going to do some rebuttal?

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I just want to make sure.

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Mr. Vande, I assume you want a couple of minutes for rebuttal too?

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I reserve two minutes.

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Okay.

[00:10:45] Speaker 03:
Perfect.

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I just want to make sure.

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Okay.

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Sorry to interrupt you, Mr. Boyle.

[00:10:49] Speaker 01:
No problem.

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There are a number of issues that we've raised in this case on appeal, and we don't wish to waive any of those issues at this point in time.

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However, there are only a couple of issues we'd like to focus upon right now.

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In view of my colleagues' handling of the pepper spray issue, I think I'll forego that one at this point in time.

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We would note that we have a similar position.

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We believe that unless the pepper spray was used by the particular defendant and a man are likely to cause death or seriously bodily harm, it's not a dangerous weapon.

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We don't think the record shows that in this case with respect to Mr. Schwartz.

[00:11:29] Speaker 03:
Would it matter if, even if pepper spray were not sufficient, what about your client hurled a folding chair?

[00:11:37] Speaker 01:
I did want to talk about the chair a second if I could.

[00:11:41] Speaker 01:
That is different from the pepper spray.

[00:11:43] Speaker 01:
If you watched the video and you saw it the same way I did, it looked as though there was some sort of a lawn chair that came flying from the crowd.

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towards the police officers.

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I don't think any police officers were seriously injured or hurt by the chair.

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There was no evidence whatsoever as to the size or the weight or the material.

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Was there evidence that an officer was hit by the chair?

[00:12:05] Speaker 01:
Pardon?

[00:12:05] Speaker 03:
Wasn't there evidence that an officer was hit by the chair?

[00:12:10] Speaker 01:
Yes, the officer who was hit by the chair didn't testify.

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One of the other officers I believe basically said it was just sort of shrugged off, it did no damage, it had no interference.

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with the way the police officer was performing his job.

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But in any event, it's not, a lawn chair is not a weapon.

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It's not something that's normally used to inflict death or seriously bodily harm.

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It's not, you know, is it capable of causing pain?

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I don't think in the circumstances in which it was used in this case, it was.

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So we would suggest that there's just no evidence that this was a weapon at all.

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It was something that was thrown as a matter of frustration that glanced off somebody.

[00:12:59] Speaker 03:
But if you're going to say everything is... If you were to throw the same type of chair at me right now, would that be capable of causing serious injury to me?

[00:13:10] Speaker 01:
Well, first of all, your honor, I would never do that.

[00:13:12] Speaker 03:
I know.

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I'm clearly hoping this is a hypothetical.

[00:13:15] Speaker 01:
OK.

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From the distance he was from the officers, I don't think he was throwing it at any specific officer.

[00:13:23] Speaker 03:
I think that matters.

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I just feel like if a chair came into my head, that would cause serious injury.

[00:13:31] Speaker 01:
Um, there are chairs depending on the size, weight, material the chair is made of.

[00:13:37] Speaker 01:
It certainly could cause death or serious bodily injury.

[00:13:41] Speaker 01:
If it were my office chair and somebody could actually pick it up and throw it, that would be a bit dangerous, but that's quite a bit different from a lawn chair.

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And I would say this lawn chair is more a matter of debris than it is a weapon.

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I don't think that if the chair were thrown at you from some distance that it would pose any threat to you whatsoever.

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Can you address the Fifth Amendment issue?

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And I guess I'll just go straight to the question that I have, which is the government's going to say that this use of the finger is like, it's more like getting a key than getting someone's password.

[00:14:22] Speaker 05:
And in some ways, that seems to be kind of the way to think about this issue.

[00:14:26] Speaker 05:
And what's your response to that?

[00:14:28] Speaker 01:
Yeah, first of all, we would point to the warrant itself that authorized the seizure of the

[00:14:34] Speaker 01:
The materials I can read from the search warrant itself, SA 10 in the record, while attempting to unlock the device by use of the compelled display of biometric data pursuant to this warrant, law enforcement is not authorized to demand that the affirmation person state or otherwise provide the password

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and this is important, or identify the specific biometric characteristics, including unique fingerprints or other physical features that may be used to unlock or access the device.

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There's a difference between a fingerprint that's just used as a fingerprint to identify a suspect

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and a fingerprint that's used to access a cell phone, particularly when the police officers don't understand or don't know what the biometric device being used is.

[00:15:30] Speaker 01:
I think to put things in a more perspective, we are all concerned about data security.

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I talked to, we do have a data security practice.

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We represent plaintiffs and data security matters.

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A fingerprint is much safer than a password.

[00:15:48] Speaker 01:
It would be odd that a person would lose their, you know, that they would have to compromise their security in order to maintain their Fifth Amendment rights.

[00:16:04] Speaker 05:
So what's the testimonial aspect?

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Pardon?

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For your Fifth Amendment claim, you have to persuade us that there's a testimonial aspect of placing the finger on the phone's reader.

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What is the testimonial aspect?

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What does that act communicate?

[00:16:19] Speaker 01:
The testimony aspect we would suggest, Your Honor, is the identification of the fingerprint as the biometric device.

[00:16:28] Speaker 01:
Communication is not always oral, as the record in this case shows.

[00:16:34] Speaker 01:
And as the FBI agent who testified admitted, Mr. Schwartz was tricked into using his finger to open the device.

[00:16:41] Speaker 01:
So it discloses which finger opens the phone.

[00:16:45] Speaker 05:
Is that your point?

[00:16:46] Speaker 01:
Yes.

[00:16:46] Speaker 01:
OK.

[00:16:48] Speaker 01:
Yes, or even whether it's a finger that opens the phone.

[00:16:51] Speaker 01:
It could also be a facial software.

[00:16:53] Speaker 01:
It could have been a password.

[00:16:55] Speaker 01:
It could have been anything.

[00:16:56] Speaker 01:
And as the search warrant itself indicates, it was the identity.

[00:17:01] Speaker 01:
And I know the search amendment is a fourth amendment versus fifth amendment thing.

[00:17:05] Speaker 01:
But I think that aspect of it is key.

[00:17:09] Speaker 01:
You can't compel somebody to identify what opens the device.

[00:17:15] Speaker 03:
That's what you say was testimonial in the case.

[00:17:18] Speaker 01:
Yes.

[00:17:19] Speaker 03:
You're not arguing that.

[00:17:21] Speaker 03:
essentially was first forced to say that this is my phone when his finger opened it up.

[00:17:27] Speaker 03:
You argue the former that he was having.

[00:17:29] Speaker 01:
I think both are true.

[00:17:30] Speaker 03:
I think that there's the ones I'm confused about what your position is.

[00:17:34] Speaker 03:
But you didn't you didn't mention the second part.

[00:17:36] Speaker 03:
You only mentioned essentially it was a forced disclosure of what your form of security or password is.

[00:17:41] Speaker 01:
And that's correct.

[00:17:42] Speaker 01:
I think that these were both communicative

[00:17:45] Speaker 01:
events.

[00:17:47] Speaker 01:
Number one, it identified his finger is unlocking the phone.

[00:17:50] Speaker 01:
And number two, it identified the phone is his phone.

[00:17:54] Speaker 01:
Um, at the time he was under arrest at the time, we believe he had invoked his right to counsel and there should have been no further questioning government.

[00:18:05] Speaker 03:
Is it trial the fact that his finger opened the phone as evidence that the statements on that phone were his?

[00:18:15] Speaker 01:
Um,

[00:18:17] Speaker 01:
To be perfectly honest, your honor, I can't recall any specific testimony in that regard, but obviously the circumstances surrounding the opening of the phone were presented to the jury and the.

[00:18:30] Speaker 03:
To violate the Fifth Amendment, it has to be used at trial.

[00:18:34] Speaker 03:
Correct.

[00:18:34] Speaker 03:
In a testimonial manner.

[00:18:36] Speaker 03:
And so that's what I'm trying to ask you is,

[00:18:39] Speaker 03:
how I understand his objections to them and getting access to his phone at the time of his arrest.

[00:18:43] Speaker 03:
But for your fifth amendment claim, and you have to show us that it was used at trial.

[00:18:49] Speaker 01:
I think the Fifth Amendment, if it leads to evidence that was used to trial, that would be the fruit of the poisonous tree.

[00:18:58] Speaker 01:
We would submit that that evidence was put in, the Fifth Amendment violation was put in, but regardless, it unlocked a whole world of information for the government that the government would not have had otherwise.

[00:19:11] Speaker 03:
How can it be fruit of the poisonous tree at trial if it's not a violation of the Fifth Amendment until it's used at trial?

[00:19:20] Speaker 01:
I'm not sure that I understand the question.

[00:19:24] Speaker 01:
It's a Fifth Amendment violation.

[00:19:26] Speaker 01:
The Fifth Amendment violation occurs when the phone is entered.

[00:19:33] Speaker 01:
The identification of the phone, the identification of his fingerprint as the device that opens it, is the Fifth Amendment violation.

[00:19:41] Speaker 01:
The Fifth Amendment violation was presented at trial.

[00:19:45] Speaker 01:
And the consequence of that Fifth Amendment violation is that there was a lot of information in the phone that the government gained access to that it would not otherwise have had had it not been for the Fifth Amendment violation.

[00:20:00] Speaker 05:
So your argument is, but for this Fifth Amendment violation, they wouldn't have been able to put in the actual contents of the phone.

[00:20:06] Speaker 05:
Correct.

[00:20:07] Speaker 05:
At trial.

[00:20:08] Speaker 05:
This is a dangerous chair.

[00:20:10] Speaker 05:
That's correct, Your Honor.

[00:20:12] Speaker 05:
The government says that is still irrelevant because they would have inevitably discovered the contents of the phone via the second warrant.

[00:20:23] Speaker 05:
And I just wanted to hear your argument in response to that.

[00:20:26] Speaker 01:
Yeah, we believe that's a conclusory argument saying something would be inevitably discovered is not certain in a case like this.

[00:20:36] Speaker 01:
Certainly there is the Fifth Amendment violation.

[00:20:38] Speaker 01:
So once you have to accept that before you get to the inevitable discovery, we just don't think there's any evidence here or any even real mention of the fact that this would have been discovered.

[00:20:52] Speaker 03:
Do you have, because I did not see it in the joint appendix, but do you have in the urgent record contain the affidavit that was used to get the 2021 warrant for forensic exam here in D.C.?

[00:21:08] Speaker 01:
I don't recall offhand.

[00:21:10] Speaker 01:
The warrant itself is in the record.

[00:21:12] Speaker 03:
Right, but the affidavit, just to figure out if the affidavit was relying on what happened at the initial arrest stage.

[00:21:18] Speaker 01:
I don't believe that is in the record.

[00:21:25] Speaker 03:
Any other questions?

[00:21:27] Speaker 03:
All right, we'll give you a couple minutes for rebuttal.

[00:21:29] Speaker 01:
OK, thank you.

[00:21:42] Speaker 03:
Good morning.

[00:21:44] Speaker 02:
Good morning, Your Honors, and may it please the Court, I endeavor to save three minutes for rebuttal.

[00:21:50] Speaker 02:
Pepper spray or its equivalent when used outside in a ventilated area from a modest distance for a brief period of time is not a deadly or dangerous weapon.

[00:22:01] Speaker 02:
Mr. Malley's conviction on count five is distinct from the prior discussion the court was having which relates to the incident in the tunnel because count five related to what in the eyes most favorable to the government was Mr. Malley spraying pepper spray again outside in a well ventilated area from a modest distance.

[00:22:20] Speaker 02:
Now I want to talk for a moment about 9 out of 10 on a pain scale.

[00:22:23] Speaker 02:
That testimony was from Officer Boyle who was on the Lower West Terrace and was the complainant for that particular count.

[00:22:30] Speaker 02:
And it is true that he testified he experienced a 9 out of a 10 on a pain scale.

[00:22:35] Speaker 02:
What is not clear from the record though is exactly what that was from.

[00:22:39] Speaker 02:
In the context of what was happening on January 6th and the general chaos of the Lower West Terrace, the record evidence is clear that Officer Boyle experienced, around that same time, a number of different bursts of spray.

[00:22:52] Speaker 02:
The government did not prove, in this case, what the canister Mr. Malley was holding contained.

[00:22:59] Speaker 02:
It could have contained inert spray.

[00:23:01] Speaker 02:
It could have contained a much weaker spray.

[00:23:02] Speaker 02:
Again, it is clear that Officer Boyle testified he experienced a 9 out of a 10 on a pain scale.

[00:23:08] Speaker 02:
But it is also clear from the videos and the record that he was experiencing different sprays from different angles right around the same time.

[00:23:15] Speaker 02:
It is unreasonable for the jury to credit that testimony as coming from Mr. Halle.

[00:23:21] Speaker 02:
In the context of January 6, when again, there is not evidence of what was in the canister that Mr. Malley had.

[00:23:30] Speaker 03:
You're not going to have that in any of the January 6 cases.

[00:23:33] Speaker 02:
Correct.

[00:23:33] Speaker 02:
And what we also don't have.

[00:23:35] Speaker 03:
Multiple sprays and multiple things going on at once.

[00:23:37] Speaker 03:
And so everybody just gets lucky.

[00:23:41] Speaker 03:
If you spray in a group, you get lucky.

[00:23:43] Speaker 03:
As a matter of law, I can't find you responsible for that.

[00:23:46] Speaker 02:
Not that the jury can't find you responsible for it, but because what the government here is relying on is that nine out of a 10 on a pain scale.

[00:23:53] Speaker 02:
What the government did not establish is the length of time that Officer Boyle was experiencing that pain.

[00:23:59] Speaker 02:
And when the government's saying a nine out of 10 is sufficient.

[00:24:01] Speaker 03:
How long does it have to last?

[00:24:04] Speaker 02:
It is, I think that's a question for the jury here.

[00:24:08] Speaker 03:
You're asking for a ruling as a matter of law.

[00:24:11] Speaker 02:
Correct.

[00:24:11] Speaker 03:
And so I thought, and maybe I just misheard you, they didn't show how long the pain lasted.

[00:24:18] Speaker 03:
So that somehow as a matter of law makes it impermissible for the jury to find that nine out of 10 counts as.

[00:24:25] Speaker 02:
The question is whether it is reasonable and simply based on a nine out of a 10 pain scale when we know based on the other record evidence that

[00:24:32] Speaker 02:
that pepper spray is a temporary sensation of incapacitation from pain.

[00:24:38] Speaker 03:
What's your best case that it's nine out of ten or I know that's not the record in this case but assume some other device that causes 10 out of 10 pain but is very brief that that is not sufficient?

[00:24:49] Speaker 02:
The question is whether a reasonable jury could find it sufficient and I think somebody could.

[00:24:54] Speaker 03:
Okay I'm trying to I thought your position I thought you were you were saying that it's unreasonable without evidence of how long it lasts.

[00:25:01] Speaker 02:
Because there is evidence that pepper spray is temporary and what I'd like to draw an analogy here is, for example, the court could could pinch its skin or perhaps dunk its arm in ice cold water and might experience a nine out of a 10 on a pain scale.

[00:25:15] Speaker 02:
But because that's a fleeting pain and is not causing otherwise serious bodily injury.

[00:25:20] Speaker 02:
would that constitute as, for example, ice cold water being a deadly or dangerous weapon when it causes a nine out of a 10 on a pain scale?

[00:25:28] Speaker 02:
And there's not evidence of how long that person felt that nine out of a 10 on a pain scale.

[00:25:33] Speaker 03:
So nine out of... I'm not understanding your point.

[00:25:35] Speaker 03:
How long does it have to be suffered to constitute, to allow a jury to reasonably find that it was a dangerous weapon?

[00:25:43] Speaker 02:
I think it has to be lasting enough

[00:25:46] Speaker 03:
What is now?

[00:25:46] Speaker 03:
I don't know what lasting for me.

[00:25:48] Speaker 03:
If I have a nine out of 10 for even a second, that's horrible.

[00:25:52] Speaker 02:
Of course it's horrible.

[00:25:53] Speaker 03:
But the question is whether that how long you can't just say enough.

[00:25:58] Speaker 03:
That's not a legal test that I can put into it.

[00:26:00] Speaker 05:
I think it's I think it is up to the jury.

[00:26:02] Speaker 05:
We would have to write a legal standard, right?

[00:26:06] Speaker 05:
Everyone in this room, as far as I understand it, agrees serious bodily injury includes extreme physical pain.

[00:26:13] Speaker 05:
And so if we're going to write extreme physical pain means X, what do we write in the opinion?

[00:26:19] Speaker 02:
Correct.

[00:26:19] Speaker 02:
I don't think this court can determine a number of seconds for extreme physical pain because I think it depends on the instrument that is causing that pain.

[00:26:29] Speaker 02:
And that goes back to whether a reasonable jury could find

[00:26:33] Speaker 02:
Again, what we're talking about here is pepper spray, which is a device used by police officers.

[00:26:37] Speaker 05:
So it would be something like extreme physical pain must be intense and more than fleeting.

[00:26:43] Speaker 02:
Is that your position?

[00:26:43] Speaker 02:
I think it has to be more than fleeting.

[00:26:45] Speaker 02:
And there's not evidence in this case that the 9 out of a 10 was more than fleeting.

[00:26:49] Speaker 03:
And in fact, extreme pain causes someone to pass out.

[00:26:53] Speaker 03:
And it wouldn't count because they passed out, so they only felt it briefly.

[00:26:59] Speaker 02:
I think it, depending on the nature of passing out or fainting,

[00:27:03] Speaker 03:
I don't want the nature of passing out or fainting.

[00:27:05] Speaker 03:
I don't want you to be mean by that.

[00:27:06] Speaker 03:
Black out.

[00:27:07] Speaker 03:
If the person blacks out for a brief period of time, pain can cause people to lose consciousness.

[00:27:12] Speaker 03:
Correct.

[00:27:13] Speaker 02:
And I think in that case, perhaps that would be enough to cause serious bodily injury or extreme physical discomfort because there's there's something more than just experience.

[00:27:21] Speaker 02:
They only felt it for a second, but there's something more than experiencing just the nine or a 10 out of pain.

[00:27:26] Speaker 02:
What about a faint, a faint, a faint.

[00:27:29] Speaker 02:
I think fainting and passing out would be the same because there's something else in addition to experiencing fainting is serious bodily injury.

[00:27:36] Speaker 02:
I think it could, depending on what happened.

[00:27:38] Speaker 03:
I think, for example, if somebody fainted, if they just turned a blowtorch on their face for a second, which obviously would cause intense pain, we would have to say, no, that's not enough because they just turned it on for a second.

[00:27:50] Speaker 02:
Well, in that case, what we're talking about is a weapon that

[00:27:53] Speaker 02:
is probably much closer to a firearm than pepper spray because it's deploying actual fire at somebody's face, which is much more likely to cause serious bodily injury in the term of- This is burning spray, right, at somebody's face.

[00:28:06] Speaker 02:
But it's not causing lasting burns, whereas a torch in somebody's face would at least threaten the use of lasting burns.

[00:28:13] Speaker 03:
The jury had evidence before, if a jury, sorry, because we have to write for the cases.

[00:28:19] Speaker 03:
If a jury had evidence that the pain endured

[00:28:24] Speaker 03:
continued or would reactivate over the next 24 or 48 hours.

[00:28:29] Speaker 03:
then it would be sufficient.

[00:28:31] Speaker 02:
That would be sufficient.

[00:28:32] Speaker 02:
But what we have here is Officer Boyle talking about the lingering pain.

[00:28:35] Speaker 02:
And he's discussing pain that he feels on other parts of his body, particularly in his groin.

[00:28:40] Speaker 02:
He discussed the fact that it was difficult for him to use the restroom.

[00:28:43] Speaker 02:
There's no evidence that the spray, to the extent that it was spray that came from Mr. Malley, was directed at the officer's groin.

[00:28:51] Speaker 02:
So what we don't have here is any evidence of lasting or lingering discomfort.

[00:28:56] Speaker 02:
What we have is testimony that pepper spray

[00:28:58] Speaker 02:
is briefly incapacitating and that there was a nine out of a 10 on a pain scale.

[00:29:02] Speaker 02:
But this is pepper spray that was used consistent with how police officers use pepper spray every day in this country and how courts condone that use of force because it doesn't cause serious bodily injuries.

[00:29:14] Speaker 03:
If we were to assume that a spray from one, we're assuming it's more ordinary pepper spray, wasn't a dangerous weapon.

[00:29:27] Speaker 03:
but two people shot at an officer at the same time.

[00:29:30] Speaker 03:
And it's a close distance, so it's not way back.

[00:29:35] Speaker 03:
And that double intensity caused nine out of 10 pain.

[00:29:39] Speaker 03:
What happens then?

[00:29:40] Speaker 02:
Unless there's more lasting or lingering effects from that.

[00:29:43] Speaker 02:
Again, what we still have is testimony of brief incapacitation.

[00:29:46] Speaker 03:
But as a person, if we had testimony of lasting effects from that, the fact that each person only did a spray that by itself

[00:29:56] Speaker 03:
wouldn't cause, under your theory, the type of pain, warranting a dangerous weapon, prosecute, charge.

[00:30:04] Speaker 03:
But if they did it at the same time as someone else and the double effect did, do they both get off?

[00:30:11] Speaker 03:
Or the fact that you do it at the same, when others are doing it as well, does that, can a jury take that into its consideration?

[00:30:18] Speaker 03:
I think a jury could take that into consideration, especially- How does that fit with your legal rule here that you want us to adopt?

[00:30:25] Speaker 02:
Because it would, to the extent that there is again more lingering or lasting pain from two effects if there's evidence to support that, then the pepper spray when used in that manner in conjunction with other pepper spray at the same time would cause that result.

[00:30:39] Speaker 03:
There was no question there was a lot of pepper spray going at these officers at the same time.

[00:30:45] Speaker 02:
Correct, Your Honor.

[00:30:47] Speaker 02:
Now just briefly with respect to unanimity, the law here generally I understand is against our position.

[00:30:54] Speaker 02:
But it's generally against our position because it is it relies on largely a split decision of the Supreme Court and distinct decisions of this court and what the Supreme Court and particularly justice Scalia said in his concurrence, which was necessary for the morality opinion.

[00:31:11] Speaker 02:
was that there is a question when at some point a crime becomes such an umbrella crime that the due process clause would require a jury to find unanimously about what particular act the defendant did that committed that crime.

[00:31:24] Speaker 03:
Our position is that 111A is such an umbrella crime because there are markedly distinct divisions between what somebody- For your client, it wasn't as though the government proved different acts and the jury had to decide or could split on which act was done.

[00:31:41] Speaker 03:
There's one act.

[00:31:43] Speaker 03:
One act.

[00:31:44] Speaker 03:
There's one act.

[00:31:45] Speaker 03:
No doubt the jury either found that act or didn't.

[00:31:47] Speaker 03:
They found that act the question of which verb they would think it most closely approximated.

[00:31:54] Speaker 03:
is that would seem, since the statute treats them all as equivalently culpable, that would seem to me to be one of the situations where we don't require unanimous instruction because the jury couldn't either, this was binary, they either found the act happened, was perpetrated by your client or didn't.

[00:32:12] Speaker 03:
There was no question of different acts.

[00:32:14] Speaker 02:
Well, there's not a question of different acts if we're looking at temporal periods of time.

[00:32:18] Speaker 02:
I believe that's correct.

[00:32:19] Speaker 02:
But if we're looking at an action taken by a defendant, and in this case, there was a disagreement about whether Mr. Malley, in his testimony, was not.

[00:32:27] Speaker 02:
There was a disagreement about what particular action he accomplished.

[00:32:31] Speaker 02:
And I think act here has to be linked to the verb that is happening, not just to the when that verb is happening.

[00:32:37] Speaker 02:
Here, it's very clear.

[00:32:38] Speaker 02:
The jury didn't have to find time.

[00:32:41] Speaker 02:
But it's very clear that the jury found something happened at roughly this period of time that Mr. Malley did that made him culpable.

[00:32:48] Speaker 02:
But the jury could have found that his presence there in pointing a canister at the officers was forcibly opposing them.

[00:32:54] Speaker 02:
And a different subset of jurors could have found that he actually sprayed the officer.

[00:33:00] Speaker 02:
And other jurors could have found that he threatened to spray the officers.

[00:33:05] Speaker 02:
And threatening to spray the officers would require at least proof of a different mental state.

[00:33:09] Speaker 02:
And that's what the government pointed out in footnote 19.

[00:33:13] Speaker 02:
Because for a threat, there has to be the specific intent to cause this apprehension of fear in this other person.

[00:33:19] Speaker 02:
It's distinct from somebody potentially near presence on the Capitol in a place where they know they're not supposed to be pointing a canister of pepper spray.

[00:33:28] Speaker 02:
Another juror might just find that that opposes it.

[00:33:31] Speaker 02:
And so the jurors could have found in this case, given the breadth of difference.

[00:33:36] Speaker 03:
If the videos showed spray coming out.

[00:33:39] Speaker 02:
There was a disagreement about whether the video did show spray.

[00:33:43] Speaker 02:
And the jury could have found that spray came out.

[00:33:45] Speaker 02:
But also the jury could have found that that spray was directed at something.

[00:33:50] Speaker 03:
The act that they have to find, first of all, is essentially this person standing there with this with the canister facing the officers.

[00:33:58] Speaker 03:
And they can decide how close it was and what the other conditions were.

[00:34:01] Speaker 03:
That's the jury's prerogative.

[00:34:03] Speaker 03:
And so it's not as though you did this and then

[00:34:07] Speaker 03:
At some later point, he threw a chair, or they're not deciding two different culpable acts.

[00:34:14] Speaker 03:
A culpable act is this, and they get to define what happened out of that.

[00:34:18] Speaker 03:
I'm not sure why, since all the acts are treated as equally culpable under this statute.

[00:34:23] Speaker 02:
Because there is a difference between, and I believe the due process clause, and again, this is what Justice Scalia talked about, there's a difference between pointing a canister of pepper spray at officers and actually deploying that canister of pepper spray.

[00:34:36] Speaker 02:
There's a difference between

[00:34:37] Speaker 02:
being somewhere which a jury could have found that his presence there while pointing a canister was forced because they're under your view of what sprain is.

[00:34:45] Speaker 03:
I'm sorry, I wasn't different if sprain is kind of harmless any how in your view.

[00:34:52] Speaker 02:
We're not saying that spraying is harmless.

[00:34:54] Speaker 02:
We're saying that the government didn't prove under the context of this case because the pepper spray was used in a ventilated area for a short period of time from a modest distance.

[00:35:02] Speaker 02:
They did not prove that this is capable of causing serious bodily injury or death.

[00:35:07] Speaker 02:
That's our point.

[00:35:08] Speaker 02:
But the jury could have found that unreasonably, but still have been required to find a difference between actually deploying the spray and his presence at the Capitol while armed with something that could have been pepper spray.

[00:35:22] Speaker 03:
They could have found that he actually sprayed it in a way that was dangerous.

[00:35:27] Speaker 03:
At the same time, that same jury could have found he didn't spray it.

[00:35:30] Speaker 02:
Some members of the jury could have found that.

[00:35:33] Speaker 03:
But they had to reach unanimity on the dangerous weapon.

[00:35:37] Speaker 02:
Our argument is that was an unreasonable verdict.

[00:35:40] Speaker 03:
I understand, but they came back with that verdict.

[00:35:43] Speaker 02:
Correct.

[00:35:43] Speaker 03:
So we're assuming the jury unanimously found that he sprayed it.

[00:35:47] Speaker 02:
No.

[00:35:49] Speaker 03:
Because the purpose of the dangerous weapon.

[00:35:50] Speaker 02:
Threatening to spray it would have been sufficient if the jury found that that was.

[00:35:53] Speaker 02:
Again, our point is unreasonable.

[00:35:55] Speaker 02:
If the jury found that he threatened to spray it or opposed officers by pointing it in that way, that that could have been a deadly or dangerous weapon.

[00:36:03] Speaker 02:
Again, we're saying that's unreasonable, but jurors could have disagreed on what the particular act was.

[00:36:07] Speaker 02:
And in point of being spraying or presence, they are armed with a canister of what might have been pepper spray.

[00:36:12] Speaker 03:
Colleagues have any questions?

[00:36:15] Speaker 03:
Rodgers?

[00:36:17] Speaker 03:
Thank you.

[00:36:17] Speaker 03:
Thank you very much, counsel.

[00:36:20] Speaker 03:
Government now.

[00:36:35] Speaker 06:
Good morning and may please the court Peter Andrews for the United States.

[00:36:39] Speaker 06:
I'll pick up with the pepper spray issue, which is common to three appellants.

[00:36:43] Speaker 06:
And it's worth focusing on the standard of review here, which is the sufficiency of the evidence.

[00:36:49] Speaker 06:
The appellants can only prevail here if they show that no reasonable jury could have concluded that pepper spray, as used by the defendants, is both capable of causing serious bodily injury and that they use it in a manner capable of causing serious bodily injury.

[00:37:02] Speaker 06:
And as I think came out in the discussion with my colleagues, there was evidence in the record from which a reasonable jury could have reached that conclusion, particularly if the jury is drawing reasonable inferences in the government's favor and looking at the light most favorable to the government.

[00:37:19] Speaker 06:
So specifically, you know, pepper spray is capable of causing serious bodily injury for two reasons, one of which is because it causes can cause nine out of 10 pain on a pain scale.

[00:37:30] Speaker 06:
We heard that both from the officers who experienced the pain during their training and then the officers who experienced that same pain on January six.

[00:37:39] Speaker 06:
That's clearly something that pepper spray is capable of doing.

[00:37:43] Speaker 05:
Is there testimony about how long that pain lasts from a spray of several seconds, like seems to be the case for each of these defendants?

[00:37:53] Speaker 06:
So if I recall the record, I don't believe there's spray.

[00:37:55] Speaker 06:
There's testimony precisely about how long the 9 out of 10 pain lasts.

[00:38:00] Speaker 06:
How long the pain lasts is very much a question of when a officer is able to clear it by flushing their eyes or getting decontaminated.

[00:38:10] Speaker 06:
In the controlled setting of their training, they go right over to the decontamination station and it's washed out.

[00:38:17] Speaker 06:
There was testimony from several of the officers that as a result of the spray they suffered on January 6, they had pain that lingered for up to two weeks, I believe the testimony, but I don't think that that was nine out of 10 spray pain.

[00:38:35] Speaker 06:
And there was also, so in addition to the nine out of 10, there was evidence in the record that if used at close range than the minimum safe distance, pepper spray can cause this sort of long-term eye damage that's known as hydraulic needling.

[00:38:48] Speaker 06:
So that, under Arrington, that's capable of causing serious bodily injury.

[00:38:53] Speaker 06:
The defendants use pepper spray in that manner because a reasonable jury could have looked at the videos and listen to the officer's testimony and concluded that in the context of resisting police officers who are trying to defend the Capitol from a riotous mob on January 6,

[00:39:10] Speaker 06:
Members of the mob, Mr. Brown, Mr. Schwartz, and Mr. Malley each used pepper spray within the minimum safe distance to attack officers in a way that could have caused them serious bodily injury.

[00:39:24] Speaker 06:
I heard a little bit of, you know, I think the point that some of my colleagues are trying to make is this idea that, well, you know, the spray, the government didn't prove that the spray hit the officers or the government didn't prove that the spray was precisely the cause of their pain.

[00:39:39] Speaker 06:
I don't think that's the test under Arrington.

[00:39:41] Speaker 06:
I don't think that there's a requirement that the spray or the weapon actually cause serious bodily injury.

[00:39:49] Speaker 06:
And I think, you know, sort of as by analogy, if you were to fire a projectile at someone and you missed, that doesn't mean you didn't use a dangerous or deadly weapon.

[00:40:01] Speaker 03:
What if... Go ahead.

[00:40:06] Speaker 03:
I was wondering, is it...

[00:40:09] Speaker 03:
in determining the effects, pain levels.

[00:40:13] Speaker 03:
On the one hand, we don't ask whether they actually caused the pain.

[00:40:17] Speaker 03:
It's whether it was capable of causing pain, and they use it that way.

[00:40:22] Speaker 03:
But then, if we have a single person say, well, it hurt me on a 9 out of 10 scale,

[00:40:33] Speaker 03:
Is that relevant or do we have to ask sort of objectively or writ large?

[00:40:38] Speaker 03:
Does it tend to cause that kind of pain?

[00:40:41] Speaker 03:
Because it seems a little unfair to say we're not going to require evidence that you actually hit the person or caused the pain to the person.

[00:40:49] Speaker 03:
But then if we have an individual

[00:40:51] Speaker 03:
And I'm not saying that here, but I'm just trying to figure out what the right test is.

[00:40:55] Speaker 03:
Is it whether objectively it can cause that level of pain?

[00:40:59] Speaker 03:
Is there evidence about that?

[00:41:01] Speaker 03:
Or if the fact that one officer did feel that level of pain, is that sufficient?

[00:41:06] Speaker 06:
Well, so as I read Arrington, I think the idea in Arrington is that it's a test that takes into account

[00:41:14] Speaker 06:
the physical characteristics of the object.

[00:41:17] Speaker 06:
What is the object capable of doing?

[00:41:19] Speaker 06:
And then putting that in the context of how the object was actually used.

[00:41:22] Speaker 06:
So I think here.

[00:41:24] Speaker 03:
Capable of doing to whom, I think, is my question.

[00:41:26] Speaker 06:
Yeah, I think capable of doing to a person.

[00:41:29] Speaker 06:
I think if there's evidence from officers that pepper spray can cause this sort of pain, then I think in a certain factual situation, then you look at, OK, how was it used in a specific factual situation?

[00:41:43] Speaker 06:
And so for example, I think this would be a closer case if the defendant was 50 feet away from an officer.

[00:41:51] Speaker 06:
He fired pepper spray kind of from a long distance.

[00:41:54] Speaker 06:
And you might look at that differently.

[00:41:57] Speaker 06:
The jury would be in a different position to say, well, that's not really the kind of close range use of pepper spray that can cause this kind of intense physical pain.

[00:42:05] Speaker 03:
But what if in that situation you had an officer who turned out to have a peculiar sensitivity or allergy to this?

[00:42:12] Speaker 03:
form of pepper spray, or certain forms of pepper spray, some of which were used that day, a bear spray or something.

[00:42:19] Speaker 03:
Would that be sufficient?

[00:42:21] Speaker 06:
So your honor, we haven't sort of briefed the question of, you're sort of talking about, it sounds like kind of an eggshell plaintiff.

[00:42:30] Speaker 03:
I mean, yeah, so you have, then we'll say you gotta, you're not gonna have an eggshell plaintiff as a police officer, I think, but just assume for some reason you do, and the chair that was thrown was, you know, the little toy chair.

[00:42:42] Speaker 03:
from someone's child toy, they threw that, wouldn't cause anybody any injury whatsoever, but it happens to hit somebody and causes very serious harm.

[00:42:52] Speaker 06:
So I think the rule from Arrington is object-focused and not target-focused.

[00:42:57] Speaker 06:
The rule from Arrington looks at the characteristics of the object and how it was used in context.

[00:43:02] Speaker 03:
So I don't think, and I don't think the court- No, but because it asks whether that object is capable of causing a qualifying level of harm,

[00:43:11] Speaker 03:
And I think at some level, you need to know to whom.

[00:43:15] Speaker 03:
And so is it most officers, all officers?

[00:43:20] Speaker 03:
I don't know how you, with physical things, physically you have an objective officer, but, because you had one officer here saying nine out of 10.

[00:43:29] Speaker 03:
And Jerry heard from others who said, not how I want to spend my day, but, you know,

[00:43:36] Speaker 06:
Well, I think, again, because we're talking about sufficiency review, I think that.

[00:43:41] Speaker 03:
Well, they have raised a legal claim here.

[00:43:43] Speaker 03:
So that's why I'm trying to understand the legal test under Arrington for what quantum of evidence about to be capable of causing for these purposes, severe pain.

[00:43:58] Speaker 03:
What's our barometer?

[00:44:00] Speaker 06:
So I think if you have an officer who testifies pepper spray causes nine out of 10 pain when I'm subjected to it, that is enough from which a defendant, from which a, this court on review- If you had every other officer say four out of 10, but one says nine out of 10.

[00:44:19] Speaker 06:
That might be a different factual scenario.

[00:44:21] Speaker 03:
I'm just asking what your position is.

[00:44:23] Speaker 03:
Your position just seemed to be if you have an officer say that,

[00:44:27] Speaker 03:
This is what I'm struggling with is trying to whom what is what is the baseline measurement.

[00:44:33] Speaker 06:
So again, I think that the evidence presented in this case, in addition to the nine out of 10 physical pain, we look at all the physical characteristics of pepper spray.

[00:44:43] Speaker 06:
that it is designed to incapacitate by causing physical pain.

[00:44:47] Speaker 06:
This is not a question of an officer who is sensitive to pepper spray.

[00:44:52] Speaker 06:
There was no testimony that an officer, that officer was saying, well, you know, I have a particular problem with Capacin.

[00:45:01] Speaker 06:
So when you combine that with kind of a common sense understanding of what pepper spray is designed to do, to incapacitate through pain.

[00:45:07] Speaker 06:
And then you have an officer say, yeah, that pain is a 9 out of 10 pain.

[00:45:11] Speaker 06:
And then you have officers who testified that throughout, as a result of what happened to them on January 6, they suffered lingering pain that lasted

[00:45:21] Speaker 06:
That is enough for a reasonable jury to conclude that.

[00:45:24] Speaker 05:
You agree that the lingering pain, there's no testimony that that was extreme.

[00:45:28] Speaker 05:
No, and I guess we agree with that.

[00:45:30] Speaker 05:
OK, so you know, opposing counsel, I think we're just dancing around the issue of what in the world serious bodily injury means, right?

[00:45:37] Speaker 05:
So opposing counsel says it must be pain that is intense and more than fleeting.

[00:45:43] Speaker 05:
Now, do you disagree with that?

[00:45:45] Speaker 05:
That is the legal question in this case.

[00:45:47] Speaker 06:
Yes, as a legal matter, the pain does not have to be more than fleeting.

[00:45:51] Speaker 06:
The pain has to be extreme physical pain.

[00:45:55] Speaker 06:
I don't understand that to require only fleeting, to require something more than fleeting pain.

[00:46:01] Speaker 06:
I think, as Judge Millett may have said, I think even a moment of nine out of 10 pain is an extreme sort of injury that no one wants to suffer.

[00:46:13] Speaker 06:
And certainly,

[00:46:14] Speaker 06:
law enforcement officers do not want to suffer while they are trying to do their jobs?

[00:46:19] Speaker 05:
Certainly sympathetic to that, right?

[00:46:21] Speaker 05:
But we're interpreting a statute that says deadly or dangerous, right?

[00:46:25] Speaker 05:
And so wouldn't it be a little bit odd if one requirement is deadly, capable of causing death, and then the other is capable of causing really intense pain for one second?

[00:46:39] Speaker 06:
No, I don't think that that's a problem.

[00:46:42] Speaker 06:
I think it's a broad statute with broad language and it is designed to provide maximum protection to law enforcement officers.

[00:46:49] Speaker 06:
And so certainly one end of the scale is inherently deadly objects like guns and knives.

[00:46:54] Speaker 06:
But at the other end of the scale is the wide class of objects that when used a certain way can cause serious bodily injury to the target.

[00:47:06] Speaker 06:
And this is a,

[00:47:07] Speaker 06:
The evidence in the record here is that pepper spray can cause that injury.

[00:47:12] Speaker 06:
And not just because of the 9 out of 10 pain, I should emphasize there is also this danger of long-term eye damage that can be used within a safe distance.

[00:47:24] Speaker 06:
So the jury's verdict could just as easily be supported by that.

[00:47:27] Speaker 06:
But there is no

[00:47:29] Speaker 06:
In our view, there's no reading of serious bodily injury that requires an extended temporal amount of nine out of 10 pain, particularly when you're crediting the jury.

[00:47:40] Speaker 05:
One of the defendants, I believe it's the video in the tunnel, says, you know, I was just spraying this above their heads.

[00:47:47] Speaker 05:
And I'm just curious what your response is to that.

[00:47:50] Speaker 05:
Is it that a jury could have found it was not above their heads, or that doesn't matter because

[00:47:57] Speaker 05:
that would still fit the definition of capable of causing injury or is it something else how would you yeah ask us to think about that question.

[00:48:06] Speaker 06:
The answer to that is both let me just sort of unpack that I think.

[00:48:09] Speaker 06:
The first point is that.

[00:48:14] Speaker 06:
There.

[00:48:16] Speaker 06:
The dangerous weapon does not need to, there's not an element that the dangerous weapon needs to actually contact the officer or be used in a way that specifically damages them.

[00:48:28] Speaker 06:
So the fact that he fired the pepper spray and missed and went right over their heads is really should not be treated differently in that closed circumstance than if he fired up a gun at them in terms of the amount of danger that

[00:48:44] Speaker 06:
I think the second point is that as a factual matter, the jury could have concluded that in that tunnel, there was evidence in the record, extended discussion from all the police officers in the record, that that tunnel was the site of the most close quarters, barbaric fighting on January 6th for more than two hours, that in that tunnel, even spraying over the head, it's a confined space, there's nowhere to go, the officers cannot get back, the officers cannot go forward, that that is enough to show that the pepper spray was deadly or dangerous.

[00:49:17] Speaker 06:
So if there are no further questions about the- Talk about the fifth amendment?

[00:49:21] Speaker 06:
Yeah, let's, happy to talk about the fifth amendment.

[00:49:24] Speaker 06:
So the search is- What is in a thumbprint?

[00:49:29] Speaker 03:
Right, a thumbprint, unlike a key which can be copied, lots of people can have keys to a house, a locker, or if you actually had a physical key for a phone, I guess I could too.

[00:49:38] Speaker 03:
There's one thumbprint.

[00:49:40] Speaker 03:
And when that thumbprint opens that phone, that thumbprint says, this is my phone,

[00:49:48] Speaker 03:
I mean, stuff on that phone is mine too.

[00:49:51] Speaker 03:
Why is that not testimonial, given the uniqueness of a thumbprint and its immediate connection to this trove of information?

[00:50:00] Speaker 06:
A few responses to that, Your Honor.

[00:50:04] Speaker 06:
I think the first thing to think about here

[00:50:08] Speaker 06:
is the Supreme Court's Fifth Amendment case law draws a distinction between the physical characteristics of a person and the contents of a person's mind.

[00:50:19] Speaker 06:
The contents of a person's mind are testimonial.

[00:50:21] Speaker 06:
You cannot force that out of a defendant, and you can't use it against them at trial.

[00:50:28] Speaker 06:
But if physical characteristics in a

[00:50:30] Speaker 06:
fairly extensive line of cases, those are fair game, and they're not testimony.

[00:50:35] Speaker 03:
That's because those physical characters just reveal sort of very limited physical facts about somebody, their blood, their blood type.

[00:50:45] Speaker 03:
Well, but I was there, this is who my identity is.

[00:50:48] Speaker 03:
But if you have, if we understand a phone in this day, a cell phone in this day and age to be

[00:50:57] Speaker 03:
capturing all the thoughts of their mind and their activities.

[00:51:03] Speaker 03:
And I think you would agree that the police couldn't require him to say, that's my phone.

[00:51:08] Speaker 03:
That's violent, right?

[00:51:09] Speaker 03:
That you can't force them, you cannot force them into, require them to say, I own those content, those thoughts on that phone, those communications on that phone.

[00:51:21] Speaker 03:
And then if the fingerprint does the exact same thing,

[00:51:27] Speaker 03:
Why should that be treated differently?

[00:51:29] Speaker 06:
So again, I think if so physical characteristics can be used to connect a defendant to tangible evidence.

[00:51:36] Speaker 06:
For example, a gun is recovered on the scene.

[00:51:39] Speaker 06:
You take the defendant's fingerprints, the fingerprints all over the gun.

[00:51:43] Speaker 06:
That creates a causal connection between the

[00:51:46] Speaker 06:
the defendant and the gun.

[00:51:48] Speaker 05:
But all that's all you would be forcing the person to do in that situation is be fingerprinted and all that act tells the government is this is my finger and listing them into incriminating themselves in the way that arguably happened in this case.

[00:52:03] Speaker 06:
Well, again, so let's I'm following you here.

[00:52:09] Speaker 06:
So let's let's take this analogy to

[00:52:11] Speaker 06:
something that's a little bit closer.

[00:52:13] Speaker 06:
So imagine that the defendant has all of their personal information in a warehouse, right?

[00:52:20] Speaker 06:
And the warehouse is locked with a key, and the key is found around the defendant's neck.

[00:52:25] Speaker 06:
The government can take the key off the defendant, can try it in the lock to the safety deposit book, to the warehouse, and get access to all the information that's within the

[00:52:37] Speaker 06:
the the warehouse that doesn't raise a 5th Amendment issue the fact that the defendant has put all that stuff in there that's a force the government the person.

[00:52:48] Speaker 05:
I'm going to imprison you unless you take that off your neck and you go put it in the lock and open the door.

[00:52:56] Speaker 06:
I think that's a difficult question, but I'm not sure that I see the 5th Amendment relevant here well, so I think

[00:53:03] Speaker 06:
So if you take the, the government can certainly take the key off the defendant and the government could, I think the government could- He didn't take his thumbprint off his finger here.

[00:53:10] Speaker 06:
No, but the government could take, I think the government, if the government knows where the safety deposit box is, let's stick with the safe deposit box, as here the phone is in the defendant's bedroom.

[00:53:21] Speaker 06:
So we already know there's a little bit of a connection between

[00:53:24] Speaker 06:
The government, I think, could take a defendant to a safety deposit box, take a key off of them, or force them to put a fingerprint scanner on that.

[00:53:34] Speaker 06:
Again, it's not revealing anything about the contents of the defendant's mind.

[00:53:38] Speaker 03:
What if they have a diary?

[00:53:42] Speaker 03:
They have a diary, and it's modern times, and the diary is opened by a thumbprint, and they force

[00:53:51] Speaker 03:
that thumb on there so they get, there's nothing more revealing of the thoughts of the mind than a diary.

[00:53:56] Speaker 03:
Right, but the question.

[00:53:58] Speaker 03:
Because you're not, you are accessing the mind through the thumb.

[00:54:04] Speaker 06:
Well, you're accessing the defendants.

[00:54:06] Speaker 06:
The defendant has chosen to write down their thoughts, right?

[00:54:09] Speaker 06:
The safest way to protect your thoughts is to not write them down, to not reveal the contents.

[00:54:15] Speaker 03:
The Fifth Amendment isn't about that.

[00:54:16] Speaker 06:
But the Fifth Amendment is about forcing the defendant to incriminate him or herself, right?

[00:54:22] Speaker 03:
So the Fifth Amendment... So you agree you can't make him say, that's my phone.

[00:54:28] Speaker 03:
thought you agreed.

[00:54:29] Speaker 03:
You can't make him say that's my phone and then use that as a consumer.

[00:54:35] Speaker 03:
This is used at trial.

[00:54:36] Speaker 03:
You can't make him say that correct.

[00:54:38] Speaker 06:
You cannot make the defendant say that's why there's all this stuff.

[00:54:41] Speaker 03:
You can't even make him say, do you use a password or a biometric ID?

[00:54:47] Speaker 03:
You can't make him say that, right?

[00:54:51] Speaker 03:
You can't make him say which finger you use.

[00:54:53] Speaker 06:
Right, but you can take any of that, but you can take the defendant so then you can.

[00:54:57] Speaker 03:
I think one thing because no, but because that is protected.

[00:55:00] Speaker 06:
No, I don't think it is.

[00:55:02] Speaker 03:
I think one way to think about this is- Everything I just said is definitely protected by the Fifth Amendment.

[00:55:07] Speaker 03:
You can't make them say, that's my phone.

[00:55:10] Speaker 03:
You can't make them say, I use a password, or I use a finger or a face.

[00:55:14] Speaker 03:
Right, but this is- You can't say which finger.

[00:55:16] Speaker 06:
But the physical characteristics doctrine says that you can use a defendant's physical characteristics as part of the government's investigation.

[00:55:24] Speaker 06:
You can use those even though they reveal the defendant's connection to- Connection, but not-

[00:55:30] Speaker 03:
a full record of his mind.

[00:55:31] Speaker 06:
I mean, I think.

[00:55:33] Speaker 03:
I don't.

[00:55:35] Speaker 06:
Well, I think you certainly.

[00:55:37] Speaker 03:
A gun and a fingerprint.

[00:55:39] Speaker 03:
And all right, so you are connected to that gun.

[00:55:40] Speaker 03:
That's not getting into the mind in the way that getting into a cell phone or a diary would be.

[00:55:46] Speaker 06:
Well, but it's not getting into the mind because the defendant has chosen to take information out of.

[00:55:53] Speaker 06:
So I think

[00:55:54] Speaker 06:
The defendants chose to take, in the hypotheticals we're talking about, the defendants chose to take information out of their mind and put it somewhere.

[00:56:00] Speaker 06:
Once they do that, the Fifth Amendment self-incrimination privilege does not attach.

[00:56:04] Speaker 06:
So for example, a defendant who writes down their password and the government finds that password, there's no Fifth Amendment problem with the government taking that password and going into a computer.

[00:56:14] Speaker 06:
There is a Fifth Amendment problem with the government saying, you need to tell me your password or I will do X, Y, or Z to you.

[00:56:24] Speaker 05:
Could we just return to this case?

[00:56:27] Speaker 05:
So I think it might even be different if this case was like Payne, where apparently the police just grabbed the person's thumb and put it on the phone reader.

[00:56:39] Speaker 05:
But the evidence, the testimony in this case, is that something like the following happened, which is that the officer said, open this phone.

[00:56:48] Speaker 05:
So that doesn't, when he puts his thumb on the reader, it doesn't just say,

[00:56:53] Speaker 05:
This is my phone.

[00:56:54] Speaker 05:
It also says, I know how to open it.

[00:56:56] Speaker 05:
It's this thumb instead of this finger.

[00:56:59] Speaker 05:
It's communicating all sorts of facts implicitly.

[00:57:03] Speaker 05:
And it seems like this is much harder than the situation, harder for you than the situation where you're just forcing the thumb onto the reader.

[00:57:11] Speaker 05:
Why is that wrong?

[00:57:14] Speaker 06:
So I have two responses.

[00:57:16] Speaker 06:
I think first goes to, I think it was Judge Millett's question earlier about whether the fingerprint came in at trial.

[00:57:23] Speaker 06:
So the answer to that is, sorry, how the government connected the phone to the defendant, whether any of that came out in trial.

[00:57:31] Speaker 06:
And the answer to that is no.

[00:57:32] Speaker 06:
The parties essentially stipulated to facts establishing the authenticity of the phone.

[00:57:38] Speaker 06:
And there was no, so it was not ever revealed to the jury.

[00:57:44] Speaker 06:
This is your inevitable discovery argument, right?

[00:57:47] Speaker 05:
And I was asking you why can we just you have a response to why that is not testimony.

[00:57:52] Speaker 06:
So I think this the second part of it is that the record is not.

[00:57:58] Speaker 06:
The record is not clear exactly what, and I'm not even sure the district court made clear factual findings about the precise interaction that went on between Mr. Schwartz and the phone.

[00:58:12] Speaker 05:
That is true, and the agent basically testified he couldn't quite recall.

[00:58:15] Speaker 05:
Right.

[00:58:15] Speaker 05:
If it is normal, what he would do is hand the phone and say, open this in case you want to get some phone numbers on it so you can make a call after you're processed, and then they snatch the phone from him.

[00:58:29] Speaker 05:
And so that is, again, it's as if handing the phone to the person and saying, open the phone.

[00:58:35] Speaker 05:
I don't see how we could treat this case any differently.

[00:58:38] Speaker 05:
But if you have something in the record, that would be.

[00:58:40] Speaker 06:
Well, I think the best we have in the record is that the district court's ultimate ruling on the Fifth Amendment, it just basically concluded that it was compelled.

[00:58:48] Speaker 06:
So the district, I think that's a, so I think that we're talking about compelled

[00:59:02] Speaker 06:
So because we're talking about, now I've lost the plot a little bit here.

[00:59:10] Speaker 05:
Can I just, well, maybe, I don't know if this is where you were going to go.

[00:59:13] Speaker 05:
Sure.

[00:59:13] Speaker 05:
That's where my question is about this inevitable discovery.

[00:59:16] Speaker 05:
My understanding is if this was a Fifth Amendment violation, we ask what it led to.

[00:59:24] Speaker 05:
And what it arguably led to at trial was the contents of the phone being admitted.

[00:59:29] Speaker 05:
And your response is, well, no, we got a second warrant.

[00:59:34] Speaker 05:
Your response is that warrant, in fact, relied on the products of the initial search.

[00:59:42] Speaker 05:
And so it is not independent and not an inevitable discovery.

[00:59:45] Speaker 06:
Right, and so your honor, our response to that is that the second warrant, even if you take out, so the second warrant does include some pictures of messages that were taken off the first search of the phone.

[00:59:57] Speaker 06:
Even if you take those out, there is no reasonable probability that the magistrate judge would not have found probable cause because- Can we do that?

[01:00:05] Speaker 05:
So this is, this is, Nick's and our cases like Holmes say, you cannot rely on speculation.

[01:00:12] Speaker 05:
In inevitable discovery cases, you have to rely on proven demonstrable facts.

[01:00:17] Speaker 05:
So proven demonstrable fact would have been a warrant that didn't rely in any way.

[01:00:22] Speaker 05:
So that I just yeah.

[01:00:24] Speaker 06:
And so the proven demonstrable, I see your point.

[01:00:26] Speaker 05:
So the point is like when we be speculating that the judge would have approved the second warrant without this.

[01:00:32] Speaker 06:
So my understanding, and we can certainly supplement the record with the affidavits if that's helpful to the court.

[01:00:37] Speaker 06:
My understanding is that everything that was contained in the first warrant.

[01:00:41] Speaker 03:
You said you can supplement with the affidavit?

[01:00:43] Speaker 06:
I believe we can, yes.

[01:00:43] Speaker 03:
I'm curious as to why it wasn't in the record.

[01:00:45] Speaker 05:
It was an oversight on our part, and I apologize.

[01:00:48] Speaker 05:
It is accessible on ECF, and it has about eight paragraphs describing the products of the initial search.

[01:00:56] Speaker 06:
And so again, the legal question remains, can we speculate that without that evidence, the warrant still would have been... It's not speculation because everything that was contained in the first warrant, the established probable cause, is also contained in the second established probable cause.

[01:01:11] Speaker 06:
So even if you

[01:01:13] Speaker 06:
There's no reasonable, it's not speculation to say, even if you take out everything that comes from the interaction with the phone, the messages, then there would still have been probable cause for the second, the second, right?

[01:01:28] Speaker 03:
The probable cause would have been?

[01:01:29] Speaker 06:
The probable cause would have been the FBI agent's investigation into Mr. Schwartz, the videos of his activities on January 6, essentially all the materials that before the search of Mr. Schwartz's house connected him to his crimes on January 6.

[01:01:42] Speaker 03:
You need to connect them to the phone.

[01:01:46] Speaker 06:
So there's no challenge to the phone.

[01:01:48] Speaker 06:
As I understand it, there is no challenge to seizing the phone, because the phone is located in Schwartz's bedroom.

[01:01:56] Speaker 06:
There was no question that the government could legally seize the phone, where the legal issue that I understand has been raised is about opening the phone.

[01:02:05] Speaker 06:
So the phone is connected as a fruit of the crime on January 6.

[01:02:12] Speaker 06:
I think that's our inevitable discovery argument.

[01:02:14] Speaker 05:
Your argument is helpful because I understand it's essentially, it's not speculation because a judge effectively granted the same warrant without that information.

[01:02:24] Speaker 05:
That is correct.

[01:02:25] Speaker 05:
Okay.

[01:02:26] Speaker 05:
It's still, is there a case that you can point us to that allows us to engage in that type of counterfactual

[01:02:34] Speaker 06:
but I do not have a case off the top of my head.

[01:02:38] Speaker 06:
I think that that is a, I would say without a case, I think that's a reasonable, I think that's a reasonable way of analyzing the situation here.

[01:02:47] Speaker 03:
You said there was a stipulation in the case?

[01:02:50] Speaker 06:
So yeah, Maya?

[01:02:51] Speaker 03:
The phone as being his phone, where's that stipulation?

[01:02:55] Speaker 06:
So the stipulation is at the beginning or during the testimony of the FBI agent who investigated Mr Schwartz.

[01:03:04] Speaker 06:
So during during that.

[01:03:07] Speaker 06:
During or before that testimony, the FBI agent, the parties agreed to stipulation that essentially says, you know, these are authentic items.

[01:03:17] Speaker 06:
They were, you know, they were seized from Mr. Schwartz, the proper chain of custody.

[01:03:23] Speaker 06:
And essentially that allowed the government to, the jury, that allowed the jury to never hear anything about the kind of the fingerprint issue and the circumstances of the search.

[01:03:38] Speaker 03:
They stipulated to the admission of the phone, but did not stipulate to ownership of the phone.

[01:03:48] Speaker 06:
I do not believe they stipulate to ownership of the phone.

[01:03:51] Speaker 06:
And again, I apologize.

[01:03:53] Speaker 06:
I believe that to the extent that the ownership of the phone was in question, the fact that it was discovered in Mr. Schwartz's bedroom, and that the subscriber information taken from the phone, the phone number, the name associated with the account, et cetera, all match Mr. Schwartz.

[01:04:07] Speaker 06:
So that's what created the ownership link, not anything from the fingerprint at trial.

[01:04:14] Speaker 03:
Where's fingerprints on the phone?

[01:04:16] Speaker 06:
I'm sorry?

[01:04:17] Speaker 03:
Do they check to see if his fingerprints were on the phone beforehand or anything?

[01:04:21] Speaker 06:
I don't know.

[01:04:23] Speaker 06:
Generally, these sorts of things are proven by things like subscriber information and the physical location of the phone.

[01:04:30] Speaker 06:
If there are no further questions, I'll just briefly, because Mr. Malley's counsel touched on the unanimity question, I think just briefly, we'd say that the verbs list in section 111, we view them as just multiple means of committing the same offense.

[01:04:46] Speaker 06:
As far as I'm aware, no circuit court has adopted Mr. Malley's view of 111 that breaks it out into different offenses requiring different mental states for each verb.

[01:04:59] Speaker 06:
And I think that's shown by the fact that the jury instructions, you know, there are five elements of the jury instructions.

[01:05:05] Speaker 06:
The jury had to reach unanimity on each of the other jury instructions as well as the one with the verbs list.

[01:05:13] Speaker 06:
So there was no need for unanimity instruction in this case.

[01:05:16] Speaker 06:
And as we said in our brief, the Second Circuit's decision in Hackintosh is instructive.

[01:05:22] Speaker 03:
Can I ask about Joinder?

[01:05:23] Speaker 03:
Yes.

[01:05:25] Speaker 03:
In particular, I think it was Mr. Malley who was in the middle.

[01:05:29] Speaker 03:
He just sort of passed the canister and all he did was pass it back and forth.

[01:05:37] Speaker 03:
Do you have any case that has upheld Joinder when the relationship between these people is as thin as this one was?

[01:05:45] Speaker 06:
I don't have a case off the top of my head, but I think it's worth emphasizing that rule eight's Joinder test is very liberal.

[01:05:51] Speaker 03:
I understand, but this would seem to be pushing.

[01:05:55] Speaker 03:
I mean, you know, all I keep thinking of is, you know, you're in the movie theater and someone says, pass this down to that person.

[01:06:00] Speaker 03:
And you do, I don't know this person, I don't know that person.

[01:06:02] Speaker 03:
I just pass it down.

[01:06:04] Speaker 06:
But it's, I think the movie theater analogy maybe doesn't.

[01:06:08] Speaker 06:
doesn't hold up because we're in the context of a riot.

[01:06:13] Speaker 06:
Think about what the indictment alleges, right?

[01:06:15] Speaker 06:
These three defendants are in the middle of a mass of people who are trying to push their way into the Capitol.

[01:06:19] Speaker 06:
They're facing an armed line of police officers, and they are passing a weapon.

[01:06:27] Speaker 06:
You can disagree on whether it's dangerous, but they're passing a weapon back and forth.

[01:06:33] Speaker 06:
drawing reasonable inferences from the indictment, they were doing so to facilitate a criminal purpose.

[01:06:39] Speaker 03:
Could everybody from January 6th be joined?

[01:06:43] Speaker 03:
I mean, could you just pick any random number of people from the tunnel and join them because they're in the tunnel opposing the police?

[01:06:50] Speaker 06:
No, there has to be some connection between them.

[01:06:53] Speaker 03:
Again, so this seems like the most minimal because it's not that he did anything with it.

[01:06:58] Speaker 03:
He even testified that he thought maybe his water bottle wasn't cleared on what it was.

[01:07:03] Speaker 06:
Um, well, testimony, you know, we're just looking at the four corners of the indictment, right?

[01:07:09] Speaker 03:
And so the indictment, I'm just, I'm just, I'm just sort of saying this with a lot of people in the tunnel.

[01:07:15] Speaker 03:
I get maybe the two on the end that we're working the pepper spray together, but Mr. Malley in the middle is just, well, Mr. Malley is a conduit for the pepper scribe.

[01:07:23] Speaker 06:
He's, he's taking an affirmative action to pass it up to someone.

[01:07:25] Speaker 06:
He's passing it back.

[01:07:26] Speaker 06:
I think there is enough of a causal nexus that the three of them were

[01:07:30] Speaker 03:
What's the closest you can see to something this minimal being upheld under Rule 8?

[01:07:37] Speaker 06:
Frankly, Your Honor, frankly, I don't have a case offhand.

[01:07:41] Speaker 06:
Most Rule 8 cases are affirmed because of the test is so, this is very liberal.

[01:07:47] Speaker 06:
The test requires no conspiracy allegation.

[01:07:50] Speaker 03:
The test only requires Are you aware of any of your experience as attorney's officer?

[01:07:55] Speaker 06:
I'm not aware of any.

[01:07:57] Speaker 06:
I'm not aware of any.

[01:08:00] Speaker 06:
not aware of anything I can offer you.

[01:08:03] Speaker 06:
If there are no further questions about any of the other issues.

[01:08:07] Speaker 03:
I guess not.

[01:08:12] Speaker 03:
Okay.

[01:08:13] Speaker 03:
Thank you very much.

[01:08:13] Speaker 03:
Okay.

[01:08:16] Speaker 03:
Um, something want to go back in the same order.

[01:08:19] Speaker 03:
So Mr Madden, we'll give you two minutes.

[01:08:21] Speaker 04:
Thank you, Your Honor.

[01:08:23] Speaker 04:
There is a certain iron in this case.

[01:08:27] Speaker 04:
The government

[01:08:29] Speaker 04:
testified that using pepper spray or the least level of restraint in somebody's face directly is not deadly or dangerous and cannot cause serious bodily harm.

[01:08:43] Speaker 04:
That is exactly what my client did.

[01:08:46] Speaker 04:
He was not even point blank with these officers.

[01:08:50] Speaker 04:
He held it over his head and sprayed it and all of a sudden this becomes deadly or dangerous and it's not because again,

[01:08:58] Speaker 04:
extreme physical pain has to be read with death or blindness, and there's no hydraulic needling in this case.

[01:09:05] Speaker 04:
I submit under Arrington, he did not use it in a manner that could be deadly or dangerous.

[01:09:11] Speaker 04:
Thank you.

[01:09:12] Speaker 03:
Thank you.

[01:09:14] Speaker 03:
Any questions?

[01:09:17] Speaker 03:
Right, Mr Boyle.

[01:09:18] Speaker 03:
Same thing.

[01:09:18] Speaker 03:
Two minutes.

[01:09:26] Speaker 01:
Police court, I don't know that there's too much I can add that hasn't been already addressed.

[01:09:31] Speaker 01:
The government did bring up the stipulation as to the authenticity of documents and other information at trial.

[01:09:38] Speaker 01:
And it is true that we did stipulate the authenticity.

[01:09:41] Speaker 01:
and admissibility of certain documents.

[01:09:44] Speaker 01:
However, we never stipulated anything concerning the phone or its ownership or anything of that nature.

[01:09:50] Speaker 01:
Our position is simply that the identification of the phone on the day of the arrest violated the Fifth Amendment.

[01:09:58] Speaker 05:
Can you respond to the inevitable discovery argument?

[01:10:01] Speaker 05:
Because it seems at least facially compelling to say we know this second warrant would have been granted without the fruits of the initial search because the initial warrant authorized a search of the phone.

[01:10:17] Speaker 01:
And I understand the logic behind that argument.

[01:10:20] Speaker 01:
However, the granting of a warrant is both a factual finding and a determination by a magistrate judge that's made at a particular time and particular place based upon the evidence presented to them.

[01:10:33] Speaker 01:
Speculating as to what a judge would have done is not an inevitable discovery.

[01:10:38] Speaker 01:
In fact, it completely swallows the entire Fourth and Fifth Amendment if you say, oh, we don't, we would have discovered this anyhow.

[01:10:47] Speaker 01:
The fact of the matter is once the information was discovered pursuant to the first warrant, the investigation was underway.

[01:10:55] Speaker 01:
The agents already had that information and trying to go back in time and

[01:11:02] Speaker 01:
dot some I's and cross some T's he didn't initially is not inevitable discovery.

[01:11:09] Speaker 01:
I don't think there's anything else I have to present.

[01:11:11] Speaker 01:
Thank you.

[01:11:12] Speaker 03:
Thank you, Council.

[01:11:15] Speaker 03:
Mr. Schieffelbein.

[01:11:25] Speaker 02:
Just briefly, your honors, in response to the court's questions about the pepper spray in the tunnel.

[01:11:30] Speaker 02:
And there was some evidence that the pepper spray was deployed over the officer's head.

[01:11:33] Speaker 02:
The government responded that the court could still find that's a deadly or dangerous weapon, the manner in which it was used, because it was used in a confined space where officers were not able to exit and they were there for several hours at a time.

[01:11:46] Speaker 02:
That response sort of compels a finding where pepper spray is used not in a confined space where officers can retreat, that it is not a deadly or dangerous weapon.

[01:11:55] Speaker 02:
The record evidence in this case is that Mr. Malley used pepper spray.

[01:11:59] Speaker 03:
Are you saying officers could have just retreated outside on the plaza?

[01:12:03] Speaker 02:
There was room for them to back up and there were other officers.

[01:12:06] Speaker 03:
Not backing up was their job.

[01:12:08] Speaker 02:
Correct, but there were other officers who would take the place.

[01:12:10] Speaker 02:
And so what the government is saying is that when somebody is stuck in an area and they can't decontact,

[01:12:14] Speaker 02:
or they can't at least back up from an area because they're confined, that is deadly or dangerous.

[01:12:20] Speaker 02:
What the record evidence here is, is that the way that officers use pepper spray every day, the way that the use of force continuum condones their use of pepper spray and the way that courts can repeatedly say this is reasonable amounts of force, which is pepper spray for brief periods of time from a modest distance in ventilated areas, exactly what Mr. Mal used is not deadly or dangerous.

[01:12:42] Speaker 03:
Any other questions?

[01:12:43] Speaker 02:
Thank you, Your Honors.

[01:12:44] Speaker 03:
Mr. Madden, you were appointed by this court to represent Mr. Brown in this case, and we are very grateful for your assistance.

[01:12:51] Speaker 03:
Thank you, Your Honor.

[01:12:52] Speaker 03:
Appreciate that.

[01:12:52] Speaker 03:
The case is submitted.