and call the case of Garrison B. Porch. I'm going to call the case of Garrison B. Porch. I'm going to call the case of Garrison B. Porch. I'm going to call the case of Garrison B. Porch. Good afternoon. My name is Donald Jacobs. I'm a little from Bud Lorna. Did you lift the microphone from hearing somehow? Is this better? Yes, so. Let me try this one. Yeah, that's better. Alright, I'll start over. Donald Jacobs from Bud Lorna on behalf of Michael Garrison. I want to introduce the council table. Michael Gibson from the Domada Law firm
. And I have reserved three minutes, so three by one. In this case, the district court entered some rejudgment against Mr. Garrison on his section 1983 claim for excessive force. Doing so on the basis of heck, V. Humphrey. And in a nutshell, the court's reasoning was that the facts of this case are different from the facts of Nelson V. Dessurek, which is a third circuit case, because in Nelson, the plaintiff had been convicted only of resisting arrest, whereas in this case, the defendant, the plaintiff, Mr. Garrison, had pled guilty to simple assault. The judge reasoned that by pleading guilty to simple assault, Mr. Garrison necessarily suggested that the force that he used was not in self-defense of the force that officer porch used, and that therefore, if Mr. Garrison were to prevail on his section 1983 claim, that would necessarily imply the invalidation of his conviction, because it would necessarily mean that the force that officer porch used was reasonable. Okay, why was he wrong? It was wrong because he got the sequence of events, he didn't give enough attention to the sequence of events. His reasoning would make sense if officer porch had been the first person to use force, and Mr. Garrison had responded with force of his own. And then if Mr. Garrison had pled guilty in that circumstance, he would have in a sense been saying that the force that Mr. Garrison, that officer porch used was reasonable, because otherwise he could have defended himself by saying that he responded with force that was necessitated by the unreasonable force used by officer porch
. But what happened here was quite different. Mr. Garrison was the one who committed the assault to which officer porch responded. All that Mr. Garrison did was raise his fists, clenched in a threatening manner. This is his version of events. Well, these are undisputed facts, and of course, even if it were just his version, they would have to be credited on a motion for somebody to add an appeal. But it's more than that, these are undisputed facts, these are the facts that Judge Hillman found and relied upon. But what Judge Hillman didn't take into consideration was that the person who uses the force in response to the initial force is the only one who, the reason the reason the reason the reason of that person's responding force has to be measured. When Mr. Garrison raised his fists, that constitutes a simple assault under the New Jersey Statute. And if you look at his plea, if you look at officer porch's incident report, that's all that is said to have occurred. He doesn't even say, and I don't think it would matter, but he doesn't even say that Mr. Garrison made contact with him. All that did was put him in reasonable fear of injury. I have lost you. I think this is really a very simple case
. Heck, the question for us is whether a judgment in favor of Garrison on the excessive force claim, which is all that's before us, necessarily implies the invulidity of his conviction for assault, right? Yes, that's definitely right. And it doesn't. If the district court determines that Garrison's action, even if successful, will not demonstrate the invulidity of a criminal judge, the action should go forward. Now, Garrison concedes the lawfulness of his arrest. Right, absolutely. By pleading guilty to the assault. Yes. That conviction, that is final. Yes. And it could not be that the excessive force preceded that final conviction. That's right. So if he's not seeking at all to invalidate his conviction for assault, why doesn't heck, just by itself, without all the self-defense, excuse me, I don't mean why isn't that just enough to keep his action in court? It is. It is enough. Absolutely. He missed the garrison. If it's possible, it's all hexagons. It doesn't necessarily implicate the invalidation of his conviction for simple assault
. If it's possible, the conviction. It's such a narrow, narrow opening that would hit bar a claim. Yeah, well, you know, if you read the McCann case, which is the seven circuit case, that was a case that arose from the entry of judgment against the plaintiff on the treaty. You have to go to seven circuit. What about the third circuit? The third circuit. Well, this is... Does anybody has anybody read? I know it's not cited. The law of the chaotic case out of this circuit from last year. Where we said, we handled. We reversed the district courts finding that plaintiffs of successive force claim was inextricably intertwined with his assault conviction. We found the claim was not at barred because it's possible that the officer may use force that is excessive in effectuating a lawful arrest. That's this case, isn't it? That is. Which case was that, Your Honor? Law of pain versus FBI. 529F3303, third circuit. I mean, that's your case
. Yeah, that's our case. And, you know, Nelson V. J. Schurick is our case, too. Yeah, Nelson. Yeah, Nelson is a case where the plaintiff alleging violations of Section 1983 was convicted of resisting arrest. The assault was complete. Yeah, that's another way to look. Before his neck was broken. Yes. I mean, I think that's the case of what the district court did not. Yeah, that's. Yeah, yeah. And that's what I'm trying to say. And that's maybe I didn't do it as articulately enough as I could have. But I mean, that his neck was broken. The assault was complete before officer porch responded with the force that broke his neck
. And that's basically it. So he's not trying to invalidate his conviction for assault. But, you know, if you accept the judge's reasoning that the mere fact that he is convicted of assault automatically implies the validity of the conviction, that would mean then that whenever a person is arrested and and resist the arrest, there are commits that some sort of an assault that the police officer is free to use whatever force that he chooses to use regardless of whether it's excessive or not. And there could never be Section 1983 claim that could succeed in those circumstances. Police have a blank check then. Yeah, it would. It would. And so the other thing that. I mean, I think Judge Barry that you've encapsulated my argument much better than I could have said it. And that is that is the argument. And then the judge, the judge relied on a panel decision in the case called Jennings, you fed him and Judge Rendell, I know was on the panel. But I don't think that that decision is in any way inconsistent with what we're arguing here. In that case, there were. Oh, it's homicide. You know, it's an attempted homicide. There were. Strangers of gunfire
. Yeah. Right. And the guy, the guy was actually convicted of attempted homicide. Very different. Thank you. Whereas Judge Barry was on a panel in the case called Green, but note five, I think the facts of that case, which is also a non-presidential opinion, are very similar to ours in the sense. Oh, we're not allowed to. No, I'm just. But what I'm talking about is, is different types of fact patterns. I'm not saying that one is, is, is precedent. Yeah. So, so I, I think then that I really don't have that much more to say. I think that's about it. Thank you very much. And you reserved time for a bottle of. Yes. Thank you
. Thank you. Thank you. May I please the court? My name is Joseph Scott. I represent police officer William Porch. If I can begin your honors by addressing the lower opinion case first, because I can see that that created some difficulty for the court. You know, I'm not for the court. I'm for after you. Well, and the, at least, you're on there. The issue of whether self defense or the issue of self defense was not put before the jury. And so the jury never considered whether this person was acting in defense. And I think the plane. What does that matter here? Well, because your honor, I think if you believe the plaintiff statement of the facts that it starts with the clitched fence, we've missed two things. We've missed the plea agreement and we've missed the testimony of the deaf. We've clenched his fist. He pled to assault. I'm sorry, Your Honor. After he clenched his fist, he pled to assault
. So even assuming that initial it was self defense when he raised his undisputably raised his fist, he subsequently pled guilty to assault. That's correct, Your Honor. Why? What is the self defense? Because your honor officer Porch had a right and a duty to counter that fact. He didn't have to stand there and take it. The case law says he is allowed to match that force with equal and objectively reason. He grabbed his hands and he swung them around. Correct. And then what did he do? Well, Your Honor. Pardon? Under the plaintiff's version, what did he do? Your Honor, the plaintiff is in clear on what the excessive force was. He just says I have a broken neck. He went down. He went down to the ground and I said to him in the deposition, what was excessive about that? And he said the fact that I was taken to the ground. But under the use of force continuum that's in the transcript, matching that force at that level of physical force is allowed. How about breaking a neck when you raise your fist and then are we strained breaking a neck? A neck is matching force? Your Honor, I think we're making a leap there that the injury is the force. The injury of the neck being broken is not the force. I suppose the district court was supposed to find that as a matter of law. I mean, at a minimum, isn't that a factual issue? Whether it was excessive or not? Well, if it's excessive or not, we're calling into question the objectively reasonableness of the officer's act in response to the force that came
. And they, correct. And at least the fifth and sixth circuit, and this, while I paneled this court in Jennings said that that was acceptable. That that's exactly what we're doing is calling that into question. Yeah, you're calling into question. You don't say as a matter of law, what he did thereafter is permissible and not excessive. Reasonableness is really what the judge did. Reasonableness is a paradigm question of fact. Is it not? The answer is yes. Well, Your Honor, with the admissions that we have in this case, I don't think it is. I think he has implied he gave up the right to allege self-defense. What's the self-defense? He says I pushed him on the chest. And I think for just testimony is there wasn't much harm done. The testimony is then that for just basically takes him down and crunches him around the neck area and his neck gets broken. Now, are you telling me that as a matter of law that that is permissible force in response to raising fists? Your Honor, I can cite you to the use of force continuum that's in the record, taking someone to the ground when they're in a stance like this going to hit you is acceptable. And crunching. Your Honor, there's an, I understand that Mr. Porch says some place in his deposition that that is neck got crunched. But he doesn't say what that force was. He doesn't know where officer porch was when it happened. But it's not that you decide that whatever it was, it was more than was merely responsive. But jury could find that a judge can't say as a matter of law that that was an equal force. I don't think this is possible. You're back into heck, which is really I think where the court should have stayed. It is possible. Does not necessarily invalidate, invalidate, imply the invulidity of the conviction. Respectfully, Your Honor, I disagree. But what's your best case? That supports the proposition. I mean, there's I think Hudson supports it. I think Cummings case supports it. The Cummings case and Hudson and the facts were where inextricably intertwined as the those cases have used the term. See, that's the problem inextricably intertwined. If Garrison kept hitting Porch and we have this constant back and forth and they're going at each other, and it's just all one big jumble from a factual standpoint that they're going at each other for six minutes, we might agree with you. But from the way Garrison's statements read, he had stopped his assault and behavior. Well, you're honor
. But he doesn't say what that force was. He doesn't know where officer porch was when it happened. But it's not that you decide that whatever it was, it was more than was merely responsive. But jury could find that a judge can't say as a matter of law that that was an equal force. I don't think this is possible. You're back into heck, which is really I think where the court should have stayed. It is possible. Does not necessarily invalidate, invalidate, imply the invulidity of the conviction. Respectfully, Your Honor, I disagree. But what's your best case? That supports the proposition. I mean, there's I think Hudson supports it. I think Cummings case supports it. The Cummings case and Hudson and the facts were where inextricably intertwined as the those cases have used the term. See, that's the problem inextricably intertwined. If Garrison kept hitting Porch and we have this constant back and forth and they're going at each other, and it's just all one big jumble from a factual standpoint that they're going at each other for six minutes, we might agree with you. But from the way Garrison's statements read, he had stopped his assault and behavior. Well, you're honor. I mean, if we look at all of Garrison's testimony, he doesn't really know what he did that night. He was drunk. Yeah, but we look at heck. And essentially, he is not seeking to invalidate his conviction. He pled guilty. That was a stopping point in terms of... Well, I may buy my point, please. Well, I just don't agree with the argument that when a person on the street comes out an officer with clenched fists in an attempt to strike him, that the officer has to take it. And the case law says he has a duty. But he has to respond with appropriate force and isn't that a jury question? And the assault conviction won't be affected in any way by the answer to that. The jury will be told that he pled guilty to assault. They're entitled to be told that. We've said that in our cases. But then the question will be whether or not the force that that porch used in response was excessive. That's a jury question, isn't it? But, Your Honor, I think allowing the 1983 cause of action to go forward is necessarily going to call into question the reasonableness of officer porch's response to the resistance
. I mean, if we look at all of Garrison's testimony, he doesn't really know what he did that night. He was drunk. Yeah, but we look at heck. And essentially, he is not seeking to invalidate his conviction. He pled guilty. That was a stopping point in terms of... Well, I may buy my point, please. Well, I just don't agree with the argument that when a person on the street comes out an officer with clenched fists in an attempt to strike him, that the officer has to take it. And the case law says he has a duty. But he has to respond with appropriate force and isn't that a jury question? And the assault conviction won't be affected in any way by the answer to that. The jury will be told that he pled guilty to assault. They're entitled to be told that. We've said that in our cases. But then the question will be whether or not the force that that porch used in response was excessive. That's a jury question, isn't it? But, Your Honor, I think allowing the 1983 cause of action to go forward is necessarily going to call into question the reasonableness of officer porch's response to the resistance. It was about the conviction, not the response. We're talking about... He's not calling into question the validity of his conviction. That's why this case is not a part. And it does not imply the invalidity of his conviction because it is possible that after his assault, what Orchus did was excessive. It could be that it does. But not necessarily. There's maybe there's a 10% chance. Let's say he hadn't broken his neck. Let's say that they say that porch did sat on him for five minutes and hit him around the head. But didn't cause any injury. There still could be a jury finding that the force in relation to what he had done was excessive, such that the simple assault conviction is not impliedly invalidated by an excessive force ruling. And Your Honor, I think the case law that the plaintiff relies upon from the first and seventh and ninth and eleventh circuit, specifically the ninth circuit in Smithert, that was the case. But even in Smithert, there was a break. The person was charged with aggravated assault with a truck
. It was about the conviction, not the response. We're talking about... He's not calling into question the validity of his conviction. That's why this case is not a part. And it does not imply the invalidity of his conviction because it is possible that after his assault, what Orchus did was excessive. It could be that it does. But not necessarily. There's maybe there's a 10% chance. Let's say he hadn't broken his neck. Let's say that they say that porch did sat on him for five minutes and hit him around the head. But didn't cause any injury. There still could be a jury finding that the force in relation to what he had done was excessive, such that the simple assault conviction is not impliedly invalidated by an excessive force ruling. And Your Honor, I think the case law that the plaintiff relies upon from the first and seventh and ninth and eleventh circuit, specifically the ninth circuit in Smithert, that was the case. But even in Smithert, there was a break. The person was charged with aggravated assault with a truck. And then when the person got out of the truck is when the officers beat him. We don't have those facts here. That's what you mean by break. But there's no allegation that at the time that he went down on the ground. And at the time that his neck that this happened, that garrison was hitting or slapping or assaulting or maybe was there respectfully by his. Did he not or arguably. If you accept only Mr. Garrison's testimony, which I understand what you do do. I understand. No one alleges here that after his neck was broken that Garrison even moved, must less that he assaulted for. No, but you're on the soul had to occur before the excessive force. I mean, and courts himself said that garrison didn't continue hitting him on the chest. I'm pretty sure that's. Well, and then this court is I think making. I'm not aware of any case law that finds where there is inextricably intertwined set of facts. You've got one case in the country that uses that phrase. We had one here and we just ignored it in Lorapia and we didn't even deal with it
. And then when the person got out of the truck is when the officers beat him. We don't have those facts here. That's what you mean by break. But there's no allegation that at the time that he went down on the ground. And at the time that his neck that this happened, that garrison was hitting or slapping or assaulting or maybe was there respectfully by his. Did he not or arguably. If you accept only Mr. Garrison's testimony, which I understand what you do do. I understand. No one alleges here that after his neck was broken that Garrison even moved, must less that he assaulted for. No, but you're on the soul had to occur before the excessive force. I mean, and courts himself said that garrison didn't continue hitting him on the chest. I'm pretty sure that's. Well, and then this court is I think making. I'm not aware of any case law that finds where there is inextricably intertwined set of facts. You've got one case in the country that uses that phrase. We had one here and we just ignored it in Lorapia and we didn't even deal with it. There's no Supreme Court that case that deals with in inter inter inter inter inter inter inter inter inter. And I was made that does mean that as he's going down, he's still fighting. He's still fighting. That there's there's back and forth back across the court. Correct. That's not the right. I guess I'm constrained to approve that. But the problem with that is this new year now. Saying that even where the facts are intertwined and there is no break and there's no excessive force after that. I think that's going to call into question what officers do in these cases. We're that what you just said. I think if that were Garrison's testimony that there is no break, they are intertwined and the force was not excessive by force. We would probably throw the case out, but it's not that clear. Well, your honors, I had a case before Judge Rodriguez in the District Court in Canada and I'm not by any sense suggesting that you adopt the holding there. But I think he had some logic that is applicable and maybe this court might find it helpful. He said that following the Movy Hill line of the Supreme Court in case Smith be Mitchell. Yes, it is your honor
. There's no Supreme Court that case that deals with in inter inter inter inter inter inter inter inter inter. And I was made that does mean that as he's going down, he's still fighting. He's still fighting. That there's there's back and forth back across the court. Correct. That's not the right. I guess I'm constrained to approve that. But the problem with that is this new year now. Saying that even where the facts are intertwined and there is no break and there's no excessive force after that. I think that's going to call into question what officers do in these cases. We're that what you just said. I think if that were Garrison's testimony that there is no break, they are intertwined and the force was not excessive by force. We would probably throw the case out, but it's not that clear. Well, your honors, I had a case before Judge Rodriguez in the District Court in Canada and I'm not by any sense suggesting that you adopt the holding there. But I think he had some logic that is applicable and maybe this court might find it helpful. He said that following the Movy Hill line of the Supreme Court in case Smith be Mitchell. Yes, it is your honor. The fact is that it's a statement. It's 394 F3D 689. He says if a person arrested uses an amount of force less than or equal to the amount of force being used by the officer, he cannot be guilty of assault. Only where a person arrested uses an amount of force greater than the amount used by the officer. Can he be found guilty of assault? How does that bear here? Garrison pled to assault. He pled to a simple assault and we are wondering whether that conviction will be invalid. How does that relate to the burden of proof on the government to find someone guilty of assault? Let's say that he has a duty to act and he doesn't have to stand there and take it. And if we say that any evidence and he did what's required, which is taken to the ground, the question is whether he did too much. That's the question. Nobody is saying he had to stand there and take it. Respectfully, your honor is I think we are that. If we think that the fact and they were all standing and everything was fine, then we might say, you know, there's no testimony that he did anything other than meat. But there's at least a question. There's at least a question. We're not saying he did. Well, there's a fact that I would agree that there's a fact that we have a broken neck. I think what we don't have is any statement from the plaintiff as to what actually was excessive in this case
. The fact is that it's a statement. It's 394 F3D 689. He says if a person arrested uses an amount of force less than or equal to the amount of force being used by the officer, he cannot be guilty of assault. Only where a person arrested uses an amount of force greater than the amount used by the officer. Can he be found guilty of assault? How does that bear here? Garrison pled to assault. He pled to a simple assault and we are wondering whether that conviction will be invalid. How does that relate to the burden of proof on the government to find someone guilty of assault? Let's say that he has a duty to act and he doesn't have to stand there and take it. And if we say that any evidence and he did what's required, which is taken to the ground, the question is whether he did too much. That's the question. Nobody is saying he had to stand there and take it. Respectfully, your honor is I think we are that. If we think that the fact and they were all standing and everything was fine, then we might say, you know, there's no testimony that he did anything other than meat. But there's at least a question. There's at least a question. We're not saying he did. Well, there's a fact that I would agree that there's a fact that we have a broken neck. I think what we don't have is any statement from the plaintiff as to what actually was excessive in this case. And that makes it different than other cases. One could say that the testimony of his months in the hospital, the first couple of weeks and the quadriplegic, that was rendered quadriplegic for a couple of years, that might be some evidence of excessive force. May or may not. Jerry might not be persuaded. But, you know, if all he ended up with is a bruise, it might have been different. And granted he was strong, he was conceitedly intoxicated at the time. And, or he might not have been in the same way. And a male on an ecstasy. Yeah. That's right. Yeah. So, of course, we received a case in the procedural posture of summary judgment, which is obviously the way we have considered. Understood. Is there any reason for me to address the other argument raised by the plaintiff, which is the error committed by the court on reference to the non-presidential case of Jennings? Because I think I clearly addressed that in the brief and comfortable relying on that. No, I don't think we need to. Thank you very much. Thank you
. And that makes it different than other cases. One could say that the testimony of his months in the hospital, the first couple of weeks and the quadriplegic, that was rendered quadriplegic for a couple of years, that might be some evidence of excessive force. May or may not. Jerry might not be persuaded. But, you know, if all he ended up with is a bruise, it might have been different. And granted he was strong, he was conceitedly intoxicated at the time. And, or he might not have been in the same way. And a male on an ecstasy. Yeah. That's right. Yeah. So, of course, we received a case in the procedural posture of summary judgment, which is obviously the way we have considered. Understood. Is there any reason for me to address the other argument raised by the plaintiff, which is the error committed by the court on reference to the non-presidential case of Jennings? Because I think I clearly addressed that in the brief and comfortable relying on that. No, I don't think we need to. Thank you very much. Thank you. Council? That's right. I have nothing further to argue unless your owners have questions. All right. Thank you very much. Thank you very much. We'll take it under advised on ask court. Reset court. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that
. Council? That's right. I have nothing further to argue unless your owners have questions. All right. Thank you very much. Thank you very much. We'll take it under advised on ask court. Reset court. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that.
and call the case of Garrison B. Porch. I'm going to call the case of Garrison B. Porch. I'm going to call the case of Garrison B. Porch. I'm going to call the case of Garrison B. Porch. Good afternoon. My name is Donald Jacobs. I'm a little from Bud Lorna. Did you lift the microphone from hearing somehow? Is this better? Yes, so. Let me try this one. Yeah, that's better. Alright, I'll start over. Donald Jacobs from Bud Lorna on behalf of Michael Garrison. I want to introduce the council table. Michael Gibson from the Domada Law firm. And I have reserved three minutes, so three by one. In this case, the district court entered some rejudgment against Mr. Garrison on his section 1983 claim for excessive force. Doing so on the basis of heck, V. Humphrey. And in a nutshell, the court's reasoning was that the facts of this case are different from the facts of Nelson V. Dessurek, which is a third circuit case, because in Nelson, the plaintiff had been convicted only of resisting arrest, whereas in this case, the defendant, the plaintiff, Mr. Garrison, had pled guilty to simple assault. The judge reasoned that by pleading guilty to simple assault, Mr. Garrison necessarily suggested that the force that he used was not in self-defense of the force that officer porch used, and that therefore, if Mr. Garrison were to prevail on his section 1983 claim, that would necessarily imply the invalidation of his conviction, because it would necessarily mean that the force that officer porch used was reasonable. Okay, why was he wrong? It was wrong because he got the sequence of events, he didn't give enough attention to the sequence of events. His reasoning would make sense if officer porch had been the first person to use force, and Mr. Garrison had responded with force of his own. And then if Mr. Garrison had pled guilty in that circumstance, he would have in a sense been saying that the force that Mr. Garrison, that officer porch used was reasonable, because otherwise he could have defended himself by saying that he responded with force that was necessitated by the unreasonable force used by officer porch. But what happened here was quite different. Mr. Garrison was the one who committed the assault to which officer porch responded. All that Mr. Garrison did was raise his fists, clenched in a threatening manner. This is his version of events. Well, these are undisputed facts, and of course, even if it were just his version, they would have to be credited on a motion for somebody to add an appeal. But it's more than that, these are undisputed facts, these are the facts that Judge Hillman found and relied upon. But what Judge Hillman didn't take into consideration was that the person who uses the force in response to the initial force is the only one who, the reason the reason the reason the reason of that person's responding force has to be measured. When Mr. Garrison raised his fists, that constitutes a simple assault under the New Jersey Statute. And if you look at his plea, if you look at officer porch's incident report, that's all that is said to have occurred. He doesn't even say, and I don't think it would matter, but he doesn't even say that Mr. Garrison made contact with him. All that did was put him in reasonable fear of injury. I have lost you. I think this is really a very simple case. Heck, the question for us is whether a judgment in favor of Garrison on the excessive force claim, which is all that's before us, necessarily implies the invulidity of his conviction for assault, right? Yes, that's definitely right. And it doesn't. If the district court determines that Garrison's action, even if successful, will not demonstrate the invulidity of a criminal judge, the action should go forward. Now, Garrison concedes the lawfulness of his arrest. Right, absolutely. By pleading guilty to the assault. Yes. That conviction, that is final. Yes. And it could not be that the excessive force preceded that final conviction. That's right. So if he's not seeking at all to invalidate his conviction for assault, why doesn't heck, just by itself, without all the self-defense, excuse me, I don't mean why isn't that just enough to keep his action in court? It is. It is enough. Absolutely. He missed the garrison. If it's possible, it's all hexagons. It doesn't necessarily implicate the invalidation of his conviction for simple assault. If it's possible, the conviction. It's such a narrow, narrow opening that would hit bar a claim. Yeah, well, you know, if you read the McCann case, which is the seven circuit case, that was a case that arose from the entry of judgment against the plaintiff on the treaty. You have to go to seven circuit. What about the third circuit? The third circuit. Well, this is... Does anybody has anybody read? I know it's not cited. The law of the chaotic case out of this circuit from last year. Where we said, we handled. We reversed the district courts finding that plaintiffs of successive force claim was inextricably intertwined with his assault conviction. We found the claim was not at barred because it's possible that the officer may use force that is excessive in effectuating a lawful arrest. That's this case, isn't it? That is. Which case was that, Your Honor? Law of pain versus FBI. 529F3303, third circuit. I mean, that's your case. Yeah, that's our case. And, you know, Nelson V. J. Schurick is our case, too. Yeah, Nelson. Yeah, Nelson is a case where the plaintiff alleging violations of Section 1983 was convicted of resisting arrest. The assault was complete. Yeah, that's another way to look. Before his neck was broken. Yes. I mean, I think that's the case of what the district court did not. Yeah, that's. Yeah, yeah. And that's what I'm trying to say. And that's maybe I didn't do it as articulately enough as I could have. But I mean, that his neck was broken. The assault was complete before officer porch responded with the force that broke his neck. And that's basically it. So he's not trying to invalidate his conviction for assault. But, you know, if you accept the judge's reasoning that the mere fact that he is convicted of assault automatically implies the validity of the conviction, that would mean then that whenever a person is arrested and and resist the arrest, there are commits that some sort of an assault that the police officer is free to use whatever force that he chooses to use regardless of whether it's excessive or not. And there could never be Section 1983 claim that could succeed in those circumstances. Police have a blank check then. Yeah, it would. It would. And so the other thing that. I mean, I think Judge Barry that you've encapsulated my argument much better than I could have said it. And that is that is the argument. And then the judge, the judge relied on a panel decision in the case called Jennings, you fed him and Judge Rendell, I know was on the panel. But I don't think that that decision is in any way inconsistent with what we're arguing here. In that case, there were. Oh, it's homicide. You know, it's an attempted homicide. There were. Strangers of gunfire. Yeah. Right. And the guy, the guy was actually convicted of attempted homicide. Very different. Thank you. Whereas Judge Barry was on a panel in the case called Green, but note five, I think the facts of that case, which is also a non-presidential opinion, are very similar to ours in the sense. Oh, we're not allowed to. No, I'm just. But what I'm talking about is, is different types of fact patterns. I'm not saying that one is, is, is precedent. Yeah. So, so I, I think then that I really don't have that much more to say. I think that's about it. Thank you very much. And you reserved time for a bottle of. Yes. Thank you. Thank you. Thank you. May I please the court? My name is Joseph Scott. I represent police officer William Porch. If I can begin your honors by addressing the lower opinion case first, because I can see that that created some difficulty for the court. You know, I'm not for the court. I'm for after you. Well, and the, at least, you're on there. The issue of whether self defense or the issue of self defense was not put before the jury. And so the jury never considered whether this person was acting in defense. And I think the plane. What does that matter here? Well, because your honor, I think if you believe the plaintiff statement of the facts that it starts with the clitched fence, we've missed two things. We've missed the plea agreement and we've missed the testimony of the deaf. We've clenched his fist. He pled to assault. I'm sorry, Your Honor. After he clenched his fist, he pled to assault. So even assuming that initial it was self defense when he raised his undisputably raised his fist, he subsequently pled guilty to assault. That's correct, Your Honor. Why? What is the self defense? Because your honor officer Porch had a right and a duty to counter that fact. He didn't have to stand there and take it. The case law says he is allowed to match that force with equal and objectively reason. He grabbed his hands and he swung them around. Correct. And then what did he do? Well, Your Honor. Pardon? Under the plaintiff's version, what did he do? Your Honor, the plaintiff is in clear on what the excessive force was. He just says I have a broken neck. He went down. He went down to the ground and I said to him in the deposition, what was excessive about that? And he said the fact that I was taken to the ground. But under the use of force continuum that's in the transcript, matching that force at that level of physical force is allowed. How about breaking a neck when you raise your fist and then are we strained breaking a neck? A neck is matching force? Your Honor, I think we're making a leap there that the injury is the force. The injury of the neck being broken is not the force. I suppose the district court was supposed to find that as a matter of law. I mean, at a minimum, isn't that a factual issue? Whether it was excessive or not? Well, if it's excessive or not, we're calling into question the objectively reasonableness of the officer's act in response to the force that came. And they, correct. And at least the fifth and sixth circuit, and this, while I paneled this court in Jennings said that that was acceptable. That that's exactly what we're doing is calling that into question. Yeah, you're calling into question. You don't say as a matter of law, what he did thereafter is permissible and not excessive. Reasonableness is really what the judge did. Reasonableness is a paradigm question of fact. Is it not? The answer is yes. Well, Your Honor, with the admissions that we have in this case, I don't think it is. I think he has implied he gave up the right to allege self-defense. What's the self-defense? He says I pushed him on the chest. And I think for just testimony is there wasn't much harm done. The testimony is then that for just basically takes him down and crunches him around the neck area and his neck gets broken. Now, are you telling me that as a matter of law that that is permissible force in response to raising fists? Your Honor, I can cite you to the use of force continuum that's in the record, taking someone to the ground when they're in a stance like this going to hit you is acceptable. And crunching. Your Honor, there's an, I understand that Mr. Porch says some place in his deposition that that is neck got crunched. But he doesn't say what that force was. He doesn't know where officer porch was when it happened. But it's not that you decide that whatever it was, it was more than was merely responsive. But jury could find that a judge can't say as a matter of law that that was an equal force. I don't think this is possible. You're back into heck, which is really I think where the court should have stayed. It is possible. Does not necessarily invalidate, invalidate, imply the invulidity of the conviction. Respectfully, Your Honor, I disagree. But what's your best case? That supports the proposition. I mean, there's I think Hudson supports it. I think Cummings case supports it. The Cummings case and Hudson and the facts were where inextricably intertwined as the those cases have used the term. See, that's the problem inextricably intertwined. If Garrison kept hitting Porch and we have this constant back and forth and they're going at each other, and it's just all one big jumble from a factual standpoint that they're going at each other for six minutes, we might agree with you. But from the way Garrison's statements read, he had stopped his assault and behavior. Well, you're honor. I mean, if we look at all of Garrison's testimony, he doesn't really know what he did that night. He was drunk. Yeah, but we look at heck. And essentially, he is not seeking to invalidate his conviction. He pled guilty. That was a stopping point in terms of... Well, I may buy my point, please. Well, I just don't agree with the argument that when a person on the street comes out an officer with clenched fists in an attempt to strike him, that the officer has to take it. And the case law says he has a duty. But he has to respond with appropriate force and isn't that a jury question? And the assault conviction won't be affected in any way by the answer to that. The jury will be told that he pled guilty to assault. They're entitled to be told that. We've said that in our cases. But then the question will be whether or not the force that that porch used in response was excessive. That's a jury question, isn't it? But, Your Honor, I think allowing the 1983 cause of action to go forward is necessarily going to call into question the reasonableness of officer porch's response to the resistance. It was about the conviction, not the response. We're talking about... He's not calling into question the validity of his conviction. That's why this case is not a part. And it does not imply the invalidity of his conviction because it is possible that after his assault, what Orchus did was excessive. It could be that it does. But not necessarily. There's maybe there's a 10% chance. Let's say he hadn't broken his neck. Let's say that they say that porch did sat on him for five minutes and hit him around the head. But didn't cause any injury. There still could be a jury finding that the force in relation to what he had done was excessive, such that the simple assault conviction is not impliedly invalidated by an excessive force ruling. And Your Honor, I think the case law that the plaintiff relies upon from the first and seventh and ninth and eleventh circuit, specifically the ninth circuit in Smithert, that was the case. But even in Smithert, there was a break. The person was charged with aggravated assault with a truck. And then when the person got out of the truck is when the officers beat him. We don't have those facts here. That's what you mean by break. But there's no allegation that at the time that he went down on the ground. And at the time that his neck that this happened, that garrison was hitting or slapping or assaulting or maybe was there respectfully by his. Did he not or arguably. If you accept only Mr. Garrison's testimony, which I understand what you do do. I understand. No one alleges here that after his neck was broken that Garrison even moved, must less that he assaulted for. No, but you're on the soul had to occur before the excessive force. I mean, and courts himself said that garrison didn't continue hitting him on the chest. I'm pretty sure that's. Well, and then this court is I think making. I'm not aware of any case law that finds where there is inextricably intertwined set of facts. You've got one case in the country that uses that phrase. We had one here and we just ignored it in Lorapia and we didn't even deal with it. There's no Supreme Court that case that deals with in inter inter inter inter inter inter inter inter inter. And I was made that does mean that as he's going down, he's still fighting. He's still fighting. That there's there's back and forth back across the court. Correct. That's not the right. I guess I'm constrained to approve that. But the problem with that is this new year now. Saying that even where the facts are intertwined and there is no break and there's no excessive force after that. I think that's going to call into question what officers do in these cases. We're that what you just said. I think if that were Garrison's testimony that there is no break, they are intertwined and the force was not excessive by force. We would probably throw the case out, but it's not that clear. Well, your honors, I had a case before Judge Rodriguez in the District Court in Canada and I'm not by any sense suggesting that you adopt the holding there. But I think he had some logic that is applicable and maybe this court might find it helpful. He said that following the Movy Hill line of the Supreme Court in case Smith be Mitchell. Yes, it is your honor. The fact is that it's a statement. It's 394 F3D 689. He says if a person arrested uses an amount of force less than or equal to the amount of force being used by the officer, he cannot be guilty of assault. Only where a person arrested uses an amount of force greater than the amount used by the officer. Can he be found guilty of assault? How does that bear here? Garrison pled to assault. He pled to a simple assault and we are wondering whether that conviction will be invalid. How does that relate to the burden of proof on the government to find someone guilty of assault? Let's say that he has a duty to act and he doesn't have to stand there and take it. And if we say that any evidence and he did what's required, which is taken to the ground, the question is whether he did too much. That's the question. Nobody is saying he had to stand there and take it. Respectfully, your honor is I think we are that. If we think that the fact and they were all standing and everything was fine, then we might say, you know, there's no testimony that he did anything other than meat. But there's at least a question. There's at least a question. We're not saying he did. Well, there's a fact that I would agree that there's a fact that we have a broken neck. I think what we don't have is any statement from the plaintiff as to what actually was excessive in this case. And that makes it different than other cases. One could say that the testimony of his months in the hospital, the first couple of weeks and the quadriplegic, that was rendered quadriplegic for a couple of years, that might be some evidence of excessive force. May or may not. Jerry might not be persuaded. But, you know, if all he ended up with is a bruise, it might have been different. And granted he was strong, he was conceitedly intoxicated at the time. And, or he might not have been in the same way. And a male on an ecstasy. Yeah. That's right. Yeah. So, of course, we received a case in the procedural posture of summary judgment, which is obviously the way we have considered. Understood. Is there any reason for me to address the other argument raised by the plaintiff, which is the error committed by the court on reference to the non-presidential case of Jennings? Because I think I clearly addressed that in the brief and comfortable relying on that. No, I don't think we need to. Thank you very much. Thank you. Council? That's right. I have nothing further to argue unless your owners have questions. All right. Thank you very much. Thank you very much. We'll take it under advised on ask court. Reset court. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that. I think I can do that