officer a hard time from start to finish i mean i watched the tape he's like and what if i say no in this and that so it is it's not escalating quite missing way is running around running away but the crime that he's actually being potentially charged with this is acting compared to the way that pratt was acting griggs is for assisting the rest of i'm sorry what was he was resisting arrest and resist and the police from the beginning i would strongly disagree with that classification i believe that if you look at the no no so that's when he threw him to the ground and me yes and the problem is that if you look at greg's his version of the events he's not saying no or pulling away because he's resisting he says no because he wants to finish putting the testes in the middle of it and he pulls because he's falling over different episodes in this whole sequence of events but you complain about three different episodes where force was used is that right and so your first complaint about the use of force has to do with he's response is no no i'm doing it which i would take is refusing to obey the command of the officer who says put your hands behind your back and then when that happens he depending on you view either lurch is to the right which may be the view of the officer or he was falling to the right and for me with a camera view i'm not sure which one but he he was drunk enough to be falling so if he says all i was doing was falling at i couldn't believe it because he was but what they obviously hears is now and then he sees a body going in the direction away from him so why doesn't justify his grabbing and putting him on the ground so you're talking about what we characterize as the legs within the chill cold and that first of it doesn't qualify as excessive force because you have to look at what was happening beforehand which is you have a largely compliant suspect who is attempting to perform a d w i and then when he threw him on the ground you know complaining about that no we are complaining about that that throw on the ground with the use of excessive force because he he kind of goes from one to ten is our point is you've got s now yes and we've taken the position that a reasonable jury looking at those facts could take great this point of view which was i said no i want to finish it is that in the question is whether the facts taken in the light most favorable to the nonmoving support a reasonable officer construing that not whether anyone could imagine that maybe he's trying to comply but he's just not balancing very well or you know whatever there's a lot of ways you could spin something but why would a reasonable officer see with the no and then the movement and then the takedown is on the grass i mean slam on to the concrete he took him down onto the grass i thought he was actually relatively mild given how much grace had given him before this moment i thought actually you know he handled that pretty well and you're saying that's excessive force when this guy was drunk i mean he should be arrested frankly yes but i think what you have is what we call  passive resistance which is saying no and then this fall over which is a version of events is that he pulled away he doesn't pull very not a reasonable inference from the facts for an officer to draw and the answer is yes and that's the problem we're having to look at it from the officers perspective not taking his version of the facts but taking the officers perspective on this set of facts we can't know no one can ever really know what was in greg's and probably including griggs who was so drunk you probably don't remember but anyway the sw around but obviously are thinking here i've got this drunk guy who could fairly quickly become a liability smaller and ask and he could fairly quickly become a liability i think the point is yes he could become a liability but he has not demonstrated anything up to this point you're arresting this guy who deserves to be arrested he's committed a crime that could have killed people and then he takes him down into the ground ok so why don't you move to the next step ok so the next one is kind of if we're going if you put him back there i don't want to graham and i will do what i think the problem is after the lexington the takedown you don't fall with your hands behind right and so he falls he's got his arms under him and then he's punched in the face and so then that's when he says you know i was scared i called until ball and  know more punches are coming more punches are coming and i don't you know he says in his testimony when i hit the ground i was already dazed he said middling intoxicated and so then to be punched repeatedly in the head and he doesn't really quite know what's going on and it's not now he's got someone sitting on top of them it's even harder for him to get his arms behind his back and how many seconds is this segment of alleged excessive so the come from the leg sweep to the takedown starts at minute twenty seven  goes to minute twenty eight and electric is probably the quickest part so i would say almost a full minute of the video is the punches to the head and attempting to grab his arms and put him in handcuffs how many seconds are there between what you contend the punches without direction and then the punches after directions i'm not sure on the exact number of seconds because he has to me i watched the video i wasn't looking at the time or probably should have been but it seemed fairly quick all of this i mean it wasn't some leisure lee you know in alice's like we're doing here i'm actually swirl argument is going to take longer than the really the alleged excessive pull for spark of a quite a bit ok the whole tape is long of the whole the discussion that's going on the other post in an up but this whole area that we're focused on is not that law and so you're asking us to in essence kind of monday morning quarterback is a good analogy right now monday morning quarterback this we saw officer who's in second dealing with this guy who's been pretty you know ma'am be with him let's say then swayed in a way that he was concerned about he's very drunk he's on the ground there you know  whatever and so we're having to focus on a couple of seconds really because by the coming into the end of this minute i mean clearly greg's knows what he's being asked to do not really doing it and i think that's part of the point as you characterize it it's some swaying in some kind of general thing and not just a not quite you know asking why do you want me to do that why should i do that and the problem is that brewer immediately responds with very aggressive force the punches to the head before he even you know when bricks lands on the ground immediate punches to the head  his arms out from underneath him allegedly this part of his pain compliance technique let me ask you this so if we were to accept your viewpoint on who got these three incidents on one of the incidents but not two of the other incidents how would we possibly try how would you all in the district i'm saying i'm saying we think of myself as the district judge how would we possibly try this case i mean to narrow it down to like ok look at just these three seconds of punching you tell us what you think why you don't the jury did offer force i mean how do we do this i mean i think it can be done there is it's going to be a bit trickier if we you know knock out knock out the likes of me for example but it's still i mean it is a continuous timeline and i think that's part of what of the officers perspective and am i justified in using force in the situation with a smaller suspect who is intoxicated who is being largely compliant who is not threatening who is not attempting to run away and who's not attempting to fight me am in the mor  defendant burns tried to allege that there was no injury but there is nothing in the record to indicate the extent of the injury there is no motions before that there were no motions before the district court to dismiss on the basis of a lack of injury and moreover the  court most recently in the urban case says that it's not it's not the extent of the injury if you use excessive force then by nature it is not at the minimus injury what was the injury so he's been he's been punched in the face multiple times i believe he's got facial damage pain pain and suffering no problem i'm not aware of any permanent damage but again the record is not indicative us to that i've got to meet your client what's wrong with him you don't know but i mean he's been his pain and suffering he's been punched in the face multiple times he's been ok well i don't i mean a bulletproof vest and you can see in chris's video this kind of flailing kick doesn't even knock him backwards and i think the issue we have with that sort of violence is you've got to restrain suspect who's in the back of the car who's not resisting and you retaliate suspect shoved him back and then the officer retaliated by punching him and tackling him in that case the eighth circuit held that although mr robert returned the officers pushed the severity of that reaction is a matter for the jury which i think is similar to this case and jury escalate precipitous leap if the arrestee is not overcome immediately and that's what officer brewer was doing in this case he perceived resistance and he reacted very quickly in egypt since when he took him down he felt he heard the word no he felt to move away and to get his hands behind i mean you've just been taken down you weren't expecting it let's say you're drunk you weren't expecting it you're taken down and your common ground on ok now what and immediately start me how can you justify that i'm not sure that happened to immediately according to griggs his affidavit once he hit the ground he said he immediately put his hands underneath his arms i don't know if the punch a starter brought the end but everything did happen real quick four times a detailing or three times i told him put your hands behind your back and once they told him keep your hands out and griggs admitted in his affidavit he immediately when he hit the ground put his arms under under  chest not that they were held there because he couldn't get them out he says he put him there twice according to griggs on affidavit the officers were able to pull out his arms and he was able to pull him back under that's all  times and everything else is ok how do you try that case and yet do we let the officer just have a few free punches just because it's hard to isolate those days does that make any sense to you i have never thought your honor i had but you beat me to your autograph like yeah you're going to try it because it is the totality of the circumstances how are you going to isolate each separate incident but did you get if you did say did you get a few free punches and i don't think he did because he immediately according to his own testimony put his arms underneath i mean that was that's what greg said and there's not really no discrepancy as to how many punches were thrown i think briggs said there were six according to the officer he threw five so there's really not much discrepancy there the car he kicks him how does the punch help get him under control well expand putting leg irons on his legs and i don't understand how punching him gets him out of control once he kicked  did what what he wanted to do with the legs or what were dangers i mean they can say well he kicked him in the chest plate or water or rock in remember the wrestling my my five and six year old daughter and stuff and i took a couple of kicks to the head i mean from a five or six year old i mean the legs or the legs or dangers they kids in the head they can hurt you but counsel again we have to watch video and so when i see that part of the video moving past the first two episodes of the use of force he kicks him i don't know whether or not he admits that he it was an intentional kick but he kicks them but when he does then you have a camera that shows that he's was about and his part of his legs and feet were still hanging out of him that the right yes and so a punch in the face is designed to get his legs into the car the punch that would that much was about ultimately that's what it was but according to burst testimony he goes he kicked me he goes i want to deliver one punch to the face to take the fight out of him i wanted him to quit fighting but didn't he have to climb into the car and get on top of him to deliver that he jumped on top of him now the other thing that helped do was get away from his legs you know now he's on top of his legs in the legs are going to get him so deliver one punch and that takes the fight out of it then he's done he gets back and he pushes his legs and closes the door it's over with i mean never uses go to it as force i don't think in this situation i mean as soon as he's handcuffed on the ground there's no more punches delivered as you know as soon as he quits kitty you know he didn't he didn't come in and say that come on i've had enough and come in and just start you know throwing six punches to the face now he jumps on and in one second that's how quick he made the decision delivers one punch to the face stuns him backs up pushes his legs and slams the door  mean he's just trying to get him under control he's trying to get him to quit resisting and that's what we're interested in is him so what you tell me when i seem to see is that it looked to me like he was already in the back seat of the car with the solution to close the door yet he was already all in the back of the car cool into first testimony he was about i don't remember groups talking about that whether he was all in or not maybe he didn't say where there are three between the driver of the car and the backseat i believe your honor i'm not sure i believe there would be that's just based on past experience but in each segment that they complain about especially at the start of the takedown i believe that was reasonable i mean and so he's still trying to do the task when he's told to put his hands behind his back he ought to be obeying what the officer says and then he yells no no and then the officer goes out this guy's you know this guy's fixin to try to fight me or get you know that i don't think he's that smart i don't think he knew that i mean that was an excited utterance i mean he's talking to me right then his adrenaline is pumping i don't think that's the case at all i think that's what he said was exactly reasonable perception and i just got that really was his perception you can tell that by what he said as he's walking back to the car so i think the takedown was reasonable when he said walking back and walking back to the car  i have you by your hand you don't you don't say no and you don't pull him away from me which is talking about what happened at the initial take down i mean officers dealing with a very intoxicated individual i mean speaking just for me i don't have a problem with the original takedown i think the point is on the ground and then the second punch in the car and the harder you want to characterize it the punch in the car are the harder ones to address i think frankly waited too long to arrest this guy i mean it's pretty clear to me that he was pretty drunk and just sort of arrested and he was actually trying to help him by doing that i think probably have some requirement to do this field sobriety test so he's trying to do the field sobriety test and that's when things  that's what brooks that's what he said he says i immediately put my arms underneath that's his own testimony and if you look at the pool case in the pool vs serious report case the man is stopped as one he's not even good yes as far as the punch to the face like said it could there been other ways to do it possibly but he made he made that decision in one second if you look at the time or he got kicked in fact he's walking back there and you can hear very faint we have to listen real close bruce says have a seat and again and then the guy starts questioning me and even tell proves a little because have a seat pushes him in the car that's when he lands enforcement a valid one for some reason he had him in the face not just retaliation corrected and he said he goes i'm not retaliating but i'm trying to do is getting mental control i'm trying to take the fight out of him and that's exactly what happened there was never any other problems after that many times to be put in the back of the here or in the face when he had him on the ground five according to brewer six according to grace and he a punch him in the face and all of just in the back of the here to according to griggs it was in the back of the neck of the back of the head evidence that it was on his face brewer testified that twice he hitting on the side of the face while he was on the ground that's a lot of rich testimony that's what works so there was some discrepancy but if he's on the ground like this probably to the face i'm going to guess as something more like just to the side of the face not to the front right right i mean it's not going to be right to the front of the face like the last  that's all i have you on english we'll have some more questions thank you very much thank you mark white you have some time for  he actually actively attempts to actually have a to rest at one point and then i think what's important is that the court notes the response is escalated in response to each incident so it doesn't start they started out with verbal commands and warnings to finally escalate to physical restraint of this use of mouth and being very very difficult in the girlfriend's intervening in there's a lot of this actually going on and off officers being very polite and whatever and the the problem that i have is your theory seems to be first this guy pasto an officer before the officer can hurt him and that isn't too hot i mean even the law without qualified immunity no i don't whole idea of the officer is to avoid it getting to a place where this incredibly drunk guy has been driving around drunk hurts anyone yes we're trying to prevent that he's already done something wrong and we're trying to run it from getting worse i think i would disagree with the qualification though that we're trying to say he has to hurt the officer first i think what we're trying to say is you don't  does not get to start a fight to then punch a suspect in the fight if you look at for example the brown the lynch case you have a suspect who matches the description of a drug dealer and they admit he's belligerent and uncle operative who yells at the officers he curses at them and then when they try to handcuff him he's  against the windows of a convenience store places his hands on the burglar bars and refuse it's let them grab his hands and in that case the officer through what is called is a stretch and strikes strike to his face and punches him two more times until he releases the bar in that case this court said that that was striking an resisting suspect is excessive an unreasonable and so i think the problem here you have is if putting your hand on the bar is not considered it's not going to justify punch the face was you know sitting on top your hands with someone else sitting on top of you going to be considered justification for five punches to the back of the head the problem that we have here is we have briggs is as i mentioned there's no warnings there's no escalation any resistance he out an arms he's outmanned he's outnumbered and he's essentially defenseless especially when you look at the sucker punch at the end when he's handcuffed there's there's no indication not a fast enough to not kick the officer yet but seriously there is no indication officer i'm not saying that justifies the punch but there's i wouldn't call that defenseless that's that's fair i would say it is true the legs are the most powerful if you are trying to d somebody bigger than you try to get it where you can use your legs against him because absolutely that is much more powerful than trying to get a fist fight to be when you're hanka i think the problem is does not cite and there is no evidence in the record and bert doesn't buy me evidence that he thought briggs was a flight risk or that he thought bridge was capable of fighting him and that every choice he's made especially just pure retaliation i think this ultimately is a case that needs to go