her but before i do that i want to bring the court's attention to the differences between the defendants excuse because defendants present litigation position and their original statements in this passively resisting the defendant's litigation position is that well she somehow fell to the floor when she was holding the scene and released the sink in the original state it's again they agree with us let me take down what was intentional and he wasn't attempting to handcuff her at the time lovelady says excuse me however he says corporal lovelady grabbed her right arm and took her to the ground causing mages knows the bleed when she hit the ground for he says i then grabbed her arm and placed her on the floor so again nothing about have to be viewed with skepticism and their credibility determine your also on what he statement doesn't say anything about going to the jail so quark's they want to cite and their litigation for nearly three minutes first of our block to emphasize this is under take it against a backdrop of record policies that tell these jewelers don't do you exactly what you're doing don't use pepper spray to begin house and that it says this force will not be used against an offender who is merely noisy or shaky punching or kicking the so do work for example but it wasn't even doing that she was and i'm going tapping on the jailers violated your brief repeatedly says they violated alla cs and i know i understand municipal liability there was no discovery on that yet in the the district court dismissed the county because there is no one in line constitutional violation not issue but i'm just curious given that you repeatedly say that these individuals violated policies in what you view as the excessive force against your client how's the county response to the what your allegation of how this is attributable the county if they actually were violating county policies then you know them quite some they were violating the county's written policies of the rent policies like so many jokes across darden that evidence a violation a policy that they have been warned about or violation of their training to be evidence of objective unreasonable  to ask you your you mentioned that there's a number of points in this episode where you think there was excessive force and you're focusing on the final stage but the pressure applied at the end and you also mention the beating and i've watched the video  and it's seems pretty clear on the video that lovelady hunch punch twice did the district coordinates lovelady opinion address that i'm trying to see where the issues as to whether that was actually occurring going back to the credit ability issues i mentioned at the beginning she certainly not kicking along point she slowly pushes her foot against lovelady after he position for nearly three messed up a site if it is correct and the jury determines that it was correct that in fact page was bugging them while they were trying to recover the handcuffs then at the very least motion from that point she is clearly subdued clearly restrained within thirty seconds of being in that prone position love like he has both handcuffs on her at that point at unreasonable when the next if the justification for the use of force as cities now officer must reassess the need for force as conditions change so we cite the amador case among others for five seconds was a fish a considerable prone position for conserve time and with handcuffs on him particularly there was no reason why they could not at any time turn her on her side there was no reason that they could not pick her up a jury could conclude and i think quite marca thirty four t n that's a very good indication that that's probably when she lost consciousness the jailers there are they study are they don't turn it over for another forty seconds after that and then they're pretty this what do you think is the most factually similar case that you would say clearly establishes this conduct as unconstitutional i started so you darden and then you said clearly established as i understand dardar almost are strikingly similar you have an obese individual who on the summary judgment evidence was only passively resisting and then immunity st the court know that lovelady was engaged in discretionary duties and pleading maintaining an appropriate environment in the jail and maintaining appropriate discipline inside a correctional facility to the court the term and that level of these actions were well within the objectively reasonable expectation and they were reasonable lawful and necessary considering all the attendant circumstances so my st point maintaining the appropriate jail environment and discipline i think the u s supreme court has been very clear in the guidance of it's provided to the courts  difficult task and a difficult undertaking deferring to jell officials concerning the need to preserve internal order and discipline and to maintain the institutional security of the ellipse it's also important to not that safety in order at the institution requires the expertise of a correctional officer to only how i am to process what you say and into the specific facts in this case of excessive yes that's jollying the facts of the case here start off much earlier than the plaintiff one of the director fairchild's want to direct your attention to i think the scope here  very important when you look at the appropriate environment inside a jail facility and the appropriate level of discipline to maintain order is you have to take into consideration that on that day there were only two officers or the entire korea county jail at the possibility and for forty five minutes they attempted to maintain order over best paid and i think and i'm disagree with you know happened have some question about him to learn the face when that was excessive force under the circumstances that exist and secondly is the hold up owner neck and just want to make sure address offer your points to us ali the st one is if you go back to the record and actually you the specific timestamps you will see that the strikes are given at three different times each strike is responsive to an action of myspace those strikes were not issued before any action ominous paint the interaction with fire is exactly caused by her obtaining the handcuffs rolling over she placed herself and the prone position rolled over on top of the handcuffs and several times attempted to grab the hairbrush that she had also used and brett and an officer with it and place that underneath her so at that point to need stripes were applied to her side in order to gain control of her hands in an attempt to get the handcuffs they attempted to roll or over on multiple occasions and after they rolled her over the st time it does show that she bites my client mr lovelady on his head you see him jerk back her foot over you see for the st time that she attempts to buy mr pelfrey see her raise her body up off the ground and her mouth open in the direction of mr palfrey and that's whe blow from lovelady was given and it prevented pelfrey from being that the nd time is at eighty three thousand one hundred and fifty five they are still continuing to attempt to put handcuffs on her and she again attempts to by help free you see her mouth open again and her raising up in an attempt to buy pelfrey so the reasoning for the strikes were to prevent further harm to the officers to use except use or suggest that person that's not a question your argument is that she wasn't subdued because she was attempting to bite still and kicking and twisting and grabbing and continue to have control over the handcuffs that this on and that's very similar to hill bursts as carroll county mississippi where the court in that case described the individual who was in a prone position handcuffed it's a different situation that was an arrest and i believe she actually was handcuffed not only with leg restraints but off the wrist restraints they continued force was used when she continued to kick twist and other was resist the deputies that were trying to affect the way our arrest and in this case it's the same situation here the officers are attempting to gain control over the handcuffs and in that process she continues to hit the video clearly it's understood we do it by twist she moves her body around and she's the one that attempts to maintain control of those handcuffs borrowing herself into the prone position and i think i think it's a complete myth character is a mischaracterization by mr thomas to say that anyone has changed their story no story has changed this the three points we raised were one about the ha my client didn't say that he lost the handcuffs or he dropped the thing that says that they were not out of it and whether part of his own struggle her struggle or someone else's like that that's not a change in story that goes to his credibility the same thing about throwing her to the floor that's not an inconsistent story elfrida one of the that you have to take all the facts of the consideration that led up to the reason for why they entered the celt and when they entered the cell they had been dealing with the woman for already five minutes to another independent inmate gave a voluntary statement to b p s that's a record on appeal or tan and he described the incident there saying mr thomas describing instances tapping on the cell door the independent witness the other inmate who gave that voluntary statement said that she was very loud that the bang was against the door that it was nerve wracking i think you said very nerve racking that once lovelady approached and spoke to kelly that he used the passive voice soon as he would leave she would start the banging again she was on a mission she was yelling and she was very persistent that's an independent witness that gave a voluntary statement there and it is silent when you judge i one of those questions about the pressure applied at the end and the length of of maintaining that pressure on her neck and i was curious about that too if you can address th i believe he's referring to defend pelfrey and my view of the answer that is watching the record and i mean lovelady doesn't have a perspective on that because he's in this constant battle here i sleep l three in the record in that video shifts his weight multiple times and his body they're all slight movements but that's not somebody that's using some type of  stain on her back with all his pressure you actually see his left hand i believe over on the stool holding the body up and you see his right hand that's the hand that supposedly holding her down and mr thomas the accusation is truth you see her shoulder move a couple of time and his body makes some slight movements like i'm moving now that's not somebody that's using any type of hold on on her that's just them trying to keep her from i mean you can put our arm over someone to prevent somebody to continue to roll over and attempt to bite you and that's what they were doing with someone who was twisting hitting biting reaching for their drawing as they're trying to maintain control of the hamper and if you really look at the video and slow it down you will see at eighty three thousand two hundred and thirty i dispute the time of three minutes that she was on the ground at eighty th you will see if you stop it right at that particular moment you will see that's the moment when page gets handcuffed and you will see stephen lovelady drop his right hand after he handcuffs are to his side and that's where you see him kind of sit back and check his breath and you see him attempting to catch his breath and then it is just a little over a minute before they immediately start the steps of attempting to gain mrs page's attention see if she's responsive and then they roll or over take her out of the handcuffs and they do start c p r immediately i think that's one of the things again i only have about three minutes of where he says we're changing the story and that's the number of times we're at the door i just want to draw the court's attention again that's not a change in story if you actually go back to the video period of where she bangs six minutes continuously on the door level eighty stops by a pedo to fifty one and then she continues the banging again or any additional minute and then appears at the door at that time stays ten minutes to calm or down and i think that's why it's very important when you look at both point one of maintaining discipline and point to the efforts that they took you really have to go back to the entire time to review the full video from seven hundred and forty eight to understand that she's the one causing the services that they have made efforts to calm her down both of them lovelady and tell three the orders for her to stop her misconduct and disturbance and they are attempting to gain compliance with her only bob verbal command they attempt to handcuff her when they are outside her cell door they so a presence of two officers present adverse cell door which is a cellar or then they use a very small burst of chemical agents and in order for her to comply she refuses to comply and is seen on video attempting to conceal something at her waist level there's no compliance like in darden that they want to use starting for example darden's an arrest case a no knock warrant case where the officers arrive and darkness on the couch with his hands up miss page at no point is passively resisting she is aggressively resisting the entire time she puts something to her waist she hides something over a blanket over her head she continues to miss and not follow any of the orders or direct some of the officers then they continue the small bursts of pepper spray she a and for all of those reasons the decisions were measured and the a limited amount of force was used was appropriate and it only in crease in response to a just action that's why we would respectfully request that the court of our and the district courts dismiss understand a couple of things one of them is that palfrey was aware that the day before this particular inmate had gotten in a all out fight in her other cell  healthy actually took her to the hospital the day before so the record reflects that he took her to the hospital there were there was no animosity there was no feeling that  happened here was pelfrey spent over ten minutes trying to patiently patiently discuss with this inmate what her problem was and when he would stop and walk away she would start again now the the plaintiffs want to talk about well all she was doing was tapping on the steel door the record reflects that that is not true she was yelling and screaming and cursing and upset ing the jail equilibrium so there was a necessity that these guys do something about what was happening on that sunday morning and i would  suggest to you that if somebody is tapping or banging on a steel door in the jails environment it is going to reverberate up and down this concrete hallways of the jail and the inmates are going to get upset  inmates so what else did what else what other facts applied to puffer well she threatened him he's trying to reason with her and the testimony in the record is she told him if you try to put me in the restraint chair i'm going to put you in a restraint chair and i'm going to take my hairbrush and janet you in your eye so that's a kind of person that we're we're dealing with here when she persists they have to restore and judge jolly i would say that if there were a close close look at the video indicates no one ever got on her back no one ever got on the bike so there's a question about the amount of  pressure that pelfrey supposedly put on her back let me talk about that for a moment it's an immaterial claim by the plaintiffs in this case it reminds me of  complaint of a judge king in the next decision to the panel they're trying to create a fact issue when indeed it's the judge's responsibility to make the decision about unreasonable notice and he did it and he said really there's no th amendment violation here because even if help to tell through put some pressure on there which is which is contested in the context of this fight it would have been understandable amendment issue of stop this judge went on and decided the clearly established prong and there's no case and he said the players never brought me a case that says that healthy couldn't put his any pressure on her at all certainly not on her neck or in a choke hold that the video is is absolutely not clear so they're trying to construct a fact you should just send this to a jury when it's wet and even that court to affirm the dismiss a jury to decide what's going on in the video the argument the characterization the way they want to make that that she's hiding that she's kicking that she's driving at the growing there are other go on ok they say thomas is saying that it was tapping it's not thomas that something was happening how for described his tapping and his deposition he agreed that it was just having the description here what you don't we don't have audio so we only have the jeweller's word for whether there was yelling screaming and cursing but from the video you just when free throws her to the ground and that's in their original statements that's what they say they saw they were under attack by the hair brush and that's why i love what he threw her to the ground but at the time he threw her to the ground respond to the circumstances as they exist at the time there was nothing it was terminal it was nothing dangerous and she frankly as we said she was a mo i wish she needs to be favor in the need for assurance that she would not act irrationally once they released a hold on her well that's a fair point but i think it works it works primarily at our favor in