good morning your honour's council made police the court my name is brian carter i'm here for defendant officer as well as for the city of minneapolis just to give you a brief outline of my argument about the facts that were likely assumed by the district court and the nine qualified immunity and then finally all comments and remark on some of the nalla so serve basically all of the qualified immunity analysis done by the court  as we tried to make clear in our in our brief officer hippel is appealing from the denial of qualified immunity and the also appealing from that the nile of official immunity on the state law claims whereas the city is just appealing from the denial of vicarious official munity on the state law claims i'm not going to talk about the state law claims unless the court has any question based on the record and i think that that is that is clear from officer had testimony and by the way there is a nice image of the extensive bruising on officer hip poles leg in the appendix i believe around knowledge from the doctor is that the engine could have been caused by being struck basically the charges were dropped and i believe that's addressed by the district court so the the qualified immunity an i won't belabor the point i know the chords and to mentally familiar with the law but obviously two prongs the first prong is that there's a constitutional violation and the second prong is that that violation was clearly establish now without waiving the first prong and we we do not believe that there was any constitutional violation present but for the purposes of the arguments today i'll just talk about the clearly established  various courts this court as well as the supreme court have explained what that clearly established prong means it means that the violation of constitutional law must be beyond debate if it means that only a plainly incompetent officer would have thought that the action didn't violate constitutional law and moreover the supreme court in a string of recent cases has reinforced and repeatedly made the point that this analysis of whether the law was clearly establish whether the violation was beyond debate that analysis must be conducted with facts particular to the case with facts particularized of the case and so that that point has been made several recent cases  stated in the in the penya and those likely assumed comes into play when the district court isn't clear about what the facts are and when that happens this court has jurisdiction under baron's v pellets he air to go into the record and look at that the novo now i don't think we're going to get into any of those baron's issues but to the extent the court believes that the record does need to be looked at because the district court was not clear or didn't specify fa it does have jurisdiction to do that so here are the facts from the district court's opinion this is largely from pages three to four miss johnson calls nine one one because she's having a domestic violence situation with her son she doesn't feel safe and she tells him that she's being threatened the officers respond officer hippel the defendant and his partner officer buck and they go to her apartment and she meets them at the door to the apartment building and she lets them into the apartment building and she happens to be holding a hammer she basically explains that she had to hammer excuse me because she felt threatened by her son she then leads the officers down the hallway to the apartment to the door of her apartment so they the officers meet johnson and they separate him from ms johnson and miss johnson says he threatened me i was three of them mr johnson the two officers sort of spill into the apartments and all three go to the ground this is the basic physical configuration of what where they were when this happens they're just inside the apartment door officer buck is got his back to the door facing the inside of the apartments basically on top of grease johnson and then there's jury and then there's hippel who's facing the apartment door on the grounds struggling with drees johnson now right behind officer hippel is mr johnson and the district court sa ms johnson was six feet behind officer heppell that's that's not what the district court assumed it's contradictory to the district court's opinion and there's no citation to anything in the three o three officer buck says it wasn't even matter if each she was basically right there their legs were enter sparse with one another so what is ms johnson doing when she's right behind officer heppell while the district court says she's upset and if you look again at what the district court cites for that proposition that she was upset you see that the district court cites injuries johnson's deposition testimony on  seventy one where mr johnson says she was mad how mad was she ten out of ten she was angry from the fight with me and when the officers use force on me she was even more angry she had a very loud voice and was saying basically don't treat him so roughly so that gives an idea of what this report met when it said upset now at this moment when ms johnson  as a district court said she's in close proximity to officer heppell officer heppell feels a sharp explosive pain in his calf and looks up at miss johnson and says did you kick me she but it was after he left the scene by ambulance well i'm getting at is ok so they both leave the scene and they both take him to the hospital and if it will finds out of the hospital it's a rupture not a kick why was she held in jail for three days you know i don't think i would have to look at the explicit record and this is not something that the district court looked at but as i recall from the record it wasn't at the first emergency not i'm not sure and that's not something the district court relied on and there's a question of how long after the arrest that was there's a whole series of facts that i think would have to be put in place to address the particular well i don't doubt the court's determination of that but the the district court's reasoning was that at the time of the so the first the first dallas's is probable cause at the time of the and and depending on the time the day of the week that she's booked it may be a booking that lasts for several days regardless of what happens after after the book for example if it's on a friday and so those those questions of the process that occurred after she was arrested i don't think are at play here and these claims and definitely not at play in the district court's opinion and i don't think they bear on the legality of the rest under the fourth amendment because the district court what it did was it based its denial on the conclusion that there should have been further investigation and that's the third point i'd like to make is that the first step in the district court's analysis is that she didn't need to be arrested right away because you could secure the scene without more problematic with the district court's opinion is the conclusion that minimal investigation would have exculpated miss johnson and i don't think this is at all correct johnson denying it isn't but i don't think that's i don't think that's what he says i don't think that's what the district court says but even if you were he's not an unbiased witness in the face of the pain the clear pain that officer hippel had the proximity is quote unquote plainly exculpatory that sort of defeats that very legal issue apart probable cause such that only a plainly incompetent officer would've still believe that she picked them and so if that answers your honour's question i'm i'm out time good morning your honor may it please the court my colleagues before i begin i wish to recognize the presence of ms katrina johnson my client in the first role behind the well she does have a a walker at the time of the incident in question she had a cane her arthritis has worsened so now she has the need for the walker as you can see immunity denial by the district court for the lack of arguable probable cause test is objective reasonable not subjective reasonable miss i submitted a  february eighteenth of this year after briefing was done in this court said and of course an officer lacks arguable probable cause to arrest someone he hasn't seen do anything wrong accordingly perkins is not entitle judgment in that case his fellow officer smith did benefit from summary judgment because he was relying on perkins now one point i make in bringing up the watkins case relate federal court well here we've got it we've got a much stronger situation where we've got officer will admit it he wasn't kicked and he testified at his deposition but for the alleged assault he would not have arrested her and i wish to draw one point in the of difference with my colleague no charges were ever pressed at all on any day at any time against katrina johnson not on the day of the arrest which of course with warrantless not while she was in jail not afterwards and there was no judicial finding of probable is a citation and if there's a warrantless arrest of an a misdemeanor they have the arresting officer does have to get judicial approval to incarcerate the individual and that certainly did not happen here and it the fourth of july weekend this wasn't a weekend scene she was in heaven county jail for three business days preceding the fourth of july holiday johnson can point to no evidence suggesting officer help will intentionally detain johnson for salt in the obstruction while knowing there was insufficient legal basis for doing so how does that square with the record with regard to when officer help will learn the true source of his pain and when johnson was released from jail seems to me there's a gap there ok trying to answer the question as to official immunity first first of  all i hope i get it number one officer hippel did testify and it appears that page appendix two thirty four that that he was aware that ms johnson was three to four feet behind him second of all relative to official immunity which is a minnesota law term of art brut well my question really goes to the issue of if you learned at the emergency room on july first what the diagnosis was and he knew that ms johnson was not the source of the pain he let her sit in jail for three days after he knew it so how could the how why is there not a showing of willful willfulness that's an excellent point ms johnson did cite and that stands for a very simple proposition that a seizure can be reasonable at the first instance but a seizure once it becomes unreasonable must cease and if the seizure maint continues it becomes unreasonable you have a case of common law false imprisonment in the case of client against glasscock that  was a deputy sheriff who found himself liable for unreasonably and wrongfully put prolonging the jailing of another of an individual client and the minnesota supreme court in the case of state against ask ruth which is a two thousand and four decision of the state supreme court which we also cited in the brief makes that same point that every  increasing that that seizure intensity of course we didn't have that here and as soon as soon as the the officers found out that you weren't kicked you know which really was back in the apartment by the district court you seem to think that was significant that officer hopeful was both the investigating officer in the victim and the court found that he lacked personal observation as well as corroborating testimony appendix three all three to three all four and at appendix eighty five to eighty six that's bucks affidavit he's saying that he's looking in towards the inside of the johnson apartment right after he's taken jurys johnson to the ground at the same time high pull is looking outward towards towards the door moriarty pages three forty forty three fifty four she didn't kick him and he actually challenged hippel on the scene how in the world are you saying that she kicked you and he disregarded and his and his pain is that it hurts ye ok it hurts you pulled a muscle that's what it was all about she didn't kick you and we consider the other facts that appeared at the scene she she's four foot six her son is is a is a six footer he's muscular he's taken away her cane she's she's frail she's in a night gown she's got soft shoes either slippers or thongs no way in this creation could somebody impart  kick a painful bruising kick to a full grown officer under those circumstances and those were the circumstances facing officer hippel at at the moment which this court and every other  and the supreme court has said is the point of analysis for qualified immunity and the case that the case from which we depart is cool against birds which we right at the moment of of the seizure and keil there was no qualified immunity and we we distinguish several cases from the circuit on their facts it was ehlers against rapid city case that one had the benefit of a video where the video showed the plaintiff walking towards the officer getting when the officer had already direct him keep your distance ehlers walked off the curb towards towards the officer the video showed this the circuit reversed the qualified immunity denial we had the case from twenty seventeen and first the officers had a reasonable suspicion to stop the individual for a moving violation fine then the driver started making up stories and changing his stories and raised  reverse the qualified immunity denial jose against the city of st paul is another twenty seven thousand cases it was a domestic and that was a situation where the officers actually encountered these facts a completely different and they get even worse for the city and hippel as the incarceration went on with what we have just to to summarize the facts m johnson was reporting victim she called nine one one on this on her son moriarty a neighbor was there gone over the way the way that she was dressed and i would have been physically impossible for her to cane the the case below concerned not only the false arrest but excessive force in common law battery and the city and officer hippel did not appeal seeing that the july third your honor some point does that is that no longer the responsibility of the officer and then falls solely upon the officers of the city that would minnesota law official immunity goes away when there when the facts when there's a disputed material fact as to whether the officer violated a known right it's analogous to qualified immunity  qualified immunity contacts is their case and says assuming probable cause initially to arrest her but you find out as hempel did that evening that in fact it wasn't here that the officer has some for the initial seizure but following the seizure there was an infliction of of excessive force there was a video and there was the video ran out and as they usually do at a critical time the testimony between the closest case that that i can come up with judge malloy so i see that my time is up and the court should affirm the denial of summary judgment but take a look at johnson against murray which was the subject of a second of a twenty a j letter which does empower the district court and this court to look at the end tire record and not just you know the record cited by the district court thank you your hon how much time scales take a minute to wrap up if you like just call thank you very much for the extra time your honour's and i just wanted to make one very quick point to the   an opportunity for us to submit additional material on that obviously to give us a chance to pore through the record because that particular issue was not briefed nor nor raised by the district court so that's all i have