minutes per side i'm going to take ten minutes so that my co counsel is going to take five and i would like to reserve two minutes for a bottle the district court erred in denying qualified immunity to officer vasquez because his actions in this case were reasonable and even if they were not reasonable the law was not so clearly established at the time and again the date of the of violation of the offense in this case or the day to the arrest was june twenty ninth two thousand and nine so  looking at whether qualified immunity should be granted there's a two step analysis first were constitutional rights violated and secondly was the constitutional right clearly established clearly estab vasquez was patrolling the area and he observed a car parked in the middle of the road with his lights off and then the car turned its lights on and proceeded past officer vasquez the other way officer vasquez decided to investigate and began following a vehicle came up behind the vehicle and which was traveling very slowly at the time only ten fifteen miles an hour and noticed that the vehicle had an expired safety check which is required in the state of  valid license officer vasquez then illuminated his blue lights to pull over the vehicle and the vehicle didn't stop it kept going albeit at ten miles an hour we had a slow speed pursuit which lasted approximately two and a half miles taking about fifteen minutes all the time officer vasquez was behind mr cornell's vehicle another vehicle police vehicle comes on the officer vasquez and officer cortez both get out of their police vehicles and demand for darryl get out of the car he refused to get out of his car he was seen grabbing some item in the car apparently a cell phone to you know that he was making a phone call with refuse the officer's command council had green and are looking at the facts though for purposes of this p r we have to look at things from the light most favorable to the weapon at him for about two minutes at his face and then the other officers sprayed him with pepper spray and they put  use of as much force since it was used here if there's no immediate threat and you get i mean the lead in case the headwaters case or political protesters with their arms locked together where the officers put up or spray on with q tip so obviously those people are not a threat cordero out here in the middle of the night in his car you have to use don't know what's in the car the keys are in the ignition which is a fact that i think we just recorded he didn't make any move to restart the car hand and point a loaded gun it is have at this point he has refused to pull over for officer vazquez for approximately fifteen minutes so so right there let's stop if we could because that's a fact mentioned repeatedly in your bracelet that this is not a high speed chase quite the contrary sometimes the high speed chase itself is a danger to the public or danger to others but in this case in this very remote area this individual slow down to i think it's something i five or ten miles an hour he says ten miles testimony he makes no signal or gesture to the police officer that he's complying that he's going to pull over that he's just trying to get to a safe area he just keeps going his testimony which we have to accept as true is that he saw these lights behind him didn't know police officers ok and he sees officer cortez getting out he sees officer cortez's car with its badge on he sees officer cortez with his badge and his uniform and then he realizes that these are two police officers and he still doesn't get out of the car he doesn't put his hands up to indicate look i'm not a threat but he crosses his arms according to the story to him after he starts grabbing things in the car i don't want he says a cell phone how did the uniforms differ from from honolulu police department there's not these weren't know where that you actually pulled over was federal property so if i've taken you i feel bad but back to where james baker was that when when your client approached the car he did what what do you think the uncontested facts are i think what one would expect is asked to see the driver's license ask to see the vehicle registration and my understanding is none of that was done here is that right just just an immediate command to get out of the car is that right right right after following him for fifteen minutes it went on for i would say i do it's unclear from mr cornell as testimony we're taking here but there were commands to get out of the car probably for a minute or so when he didn't do it and i think it was when mr cordell picked up the cell  phone which officer had his wouldn't know if that's a weapon or what it is that he would have drawn the weapon so you know i think mr gore darrow you know escalated the situation here by continuing to than he didn't get out of the car from him from taking the testimony in the light most favorable to him isn't that really all that he did wrong was that he didn't get out of the car he didn't get out of the me that did seem uncontested in the record that he was sitting asking to have the h p d call which is not a comment i would expect from someone who is trying to evade police and that's why i'm really it's true it's i'm not trying to be flip i'm trying to make sure i haven't missed anything else that he not loosening the handcuffs when he told them what they heard and what would justify not allowing him a handkerchief a kleenex something to wipe the pepper spray out of his eyes over a prolonged period once he's been subdued justify not giving him a handkerchief or wiping the pepper spray out there's you know there's no testimony in the record on this but there are you believe there is testimony that the officers are trained to wait for e m t because they're not medical technicians to take care of the pepper spray and that actually wiping it can make under control they put the fingers in to make sure that you know they're not too tight to the testify that they did that there's no testimony in the record i would have i would so they did testify that they did that and he testified that that that they hurt and that they hurt for a couple of weeks afterwards right so why isn't that why and why wouldn't that alone be sufficient to sentence to a jury might have narrowed the issues but i will concede on the three issues that the pepper spray and pointing the gun i believe  qualified immunity and we could see that you know the record on the handcuffs alone there just requires it but there's actually a jury act on there ok yes you will also you have to go back to the jury on that question at least i would concede that issue that one alone showed up it was undisputed that he was in uniform he was in a police car the conduct of my client was clearly reasonable he showed up in a situation where there's one police officer one person in a defensive posture not getting out of the vehicle when he pepper spray arrow that's a very defensive posture he's in afghanistan right now and i've served with him in the air national guard he is not complying with this arrest and i also want to point out that mr cook or darryl he escalated the situation it's two in the morning he testified left a party he's in a very secluded area of hawaii going ten miles an hour he's followed for fifteen minutes on federal property that he can be on from his privilege of serving in the military he refuses to pull over and in my client comes up becomes to situation where there's a person in a vehicle who's escalated the situation who's refused to get out who's sitting in a defensive posture and these are police officers who have to make a split second split second reaction they can't see into the  they don't know what's underneath him and my client pepper sprays him while he still has the keys in his ignition i believe mr brewer has laid out the facts of that but those are the using the midst of ours also conceded that at least with respect to the handcuffs that question has to go to the jury i would disagree ey're not too there's no testimony that they are going to put two fingers you can also double handcuff to make a looser but most times officers when they're handcuffed there's going to be some pressure on that because you're restraining someone you know you're not just asking me quietly to get into the back of a police car so think you can be you can be restrained in such a way that you that you're not mogul without without hurting somebody correct and some people who are handcuffed and we've done this you know when we train people who are briefings i mean certain people grew certain people won't bruise that is just part of having a metal v jurisdiction basically what occurred on june twenty ninth two thousand and nine is that it too in the morning or there after after mr corder was fishing he left from the beach area didn't know he was fishing caray knew he was out there at two in the morning right and fifteen minutes is a long time not to comply with the police officers signal to pull over what's your response the response is in the record your honor there is nothing you can look back over to tell you the facts fifteen minutes before your client pulled over i've already made it clear that i understand he was going ten miles an hour that's a long time my question is what's the read what's a response why didn't he pull over fifteen minutes he didn't pull over for fifteen minutes because first of all there's nothing in the record that it was fifteen minutes they're arguing it was fifteen minutes there is zero in the wrestling match your first response correct the second response is the reason why he didn't pull over is because he's in a very dark and secluded area of this island he was trying to drive in this is in the record to a shopping mall so that he could be in a place where there's a hole lights and explain what we've read the record so i think that's important to just be really clear we're we're familiar with the record fast to the point where he could not even see the license plate of the pickup truck behind him and then slowed down it did that again came up to very close behind his car and that point it turned on the lights at that point he noticed it was a black pickup truck no markings on the pickup truck it was not h p he knew he was an h p jurisdiction so he believed that he was were either adolescents messing around or he had heard on at least three occasions there were people impersonating police officers in this exact area and there had been people pulled over by people impersonating cops and they had been assaulted what it might look like the lights are blue lights  thank you so basically he was traveling in that area all he wanted to do was get to a place where he could be around other people or there would have been lights the police procedure states that the police themselves are supposed to take there pulling over to a place that is well it not only for the suspects protection but for the protection of the police and act in their response and that would be that it's not always possible to get to a well lit area in this instance it was well was on the reasonableness of allowing this to go on for fifteen minutes and i would disagree that it was fifteen minutes and again as i stated there's nothing in the record since that this was fifteen minutes or so he's moving to a place where he could be feel like he was secure or protected not knowing that these were actually two weeks and we know how far he traveled we don't know exactly how far he travels the shopping center that he was traveling to was two and a half miles from the police where you can he said he was going ten miles an hour correct that's fifteen minutes right make it there so at some time before the fifteen minutes maybe half of the fifteen minutes i'm not exactly sure and there's no testimony as to the answer you mentioned that this happened after your client had been fishing and that what he wanted to do is to get the well lighted area and get to the shopping center and whatnot from police perspective do we look at this the reasonable officer so they don't necessarily know that right not that that's going to be their argument when they come back to the podium and i'm just trying to give you a fair chance to respond to it sure but a reasonable officer is a well trained officer we're assuming a well trained officer should have known their own policies that if a person is travelling at ten miles an hour and again in the record they never state neither the officer state that they thought that he was in their deposition they didn't state that he was there's nothing in the record before this court that he was feeling so they should have known when he's traveling ten miles an hour he doesn't change his speed he doesn't make it to any of a sudden movements he does not do anything that a reasonable officer would have thought that this man he's not complying or you can get out of the car well one step back when he's being pulled over he's being pulled over for a safety check yes he didn't stop and he was being evasive on some level for not stopping when officer got out of this car immediately and aggressively ran up to mr cornell's car he yelled at him to get out of the car and get on the ground he never asked for his safety check information his license he never identified himself as a police officer as as was already in that passive resistance in refusing to comply with an order of a police officer does not raise the situation to a level where you can use an intermediate or high level of force as w the brooks case there was the brooks case first of all they found that there was a constitutional violation in the books case there was a level of resistance that you do not find here here regardless of what the court found there was no resistance here taking plaintiff's story as correct there was no resistance whatsoever besides a passive resistance of saying i will not get out of the car non plussed right please call each p d and to clarify the factual record as compared to what defense counsel stated he said please call each p d multiple times and then he picked up his phone to call each p d and officer vasquez tells him to put down your phone there's no question that officer vasquez knew this was a phone that had the phone in the sand in that he said hands folded arms folded with a police officer there and quite another to be reaching for something reaching for the cell phone because we're still concerned about the laws that concerned about officer safety my understanding from the opposing counsel is that's the point at which the gun was point what's your response please that is completely incorrect there's nothing in the record the states that the record in taking court testimony as has the facts that we must look at at this point in the case he had already picked up his phone to call h p d officer vasquez put says put the phone down he puts the phone down officer vasquez then repeats get out of the car get out of the car you're not complying get out of the car at that point there is a passive resistance as to nine with the noncompliance at that point he draws his weapon and puts it to mr corduroys head the phone was already down there's no evidence whatsoever in the record that mr corder was feeling at that point he was actively resisting at that point he was making any threats at that point nothing so at the time then mr cord darrow had put down his phone and again he was asked to get out of the car and he refused the gun was drawn the timing of it shows that there was no threat they want to say that there his hands are in the car he couldn't grab anything well anybody that's pulled over could have ever done that so anybody that's pulled over because they could have grabbed something in the car that the officer didn't know was there even though the officer has no objective pull of it jack to have reason to believe that there's a weapon of that there's any threat whatsoever that they have a right to draw the weapon and put it to the head of mr cornell a level of force that is high by all of the case law is completely unreasonable so next officer cortez comes handcuff him to the point where it leaves bruises on his wrist and in the record are the pictures of the bruises for two and a half weeks these bruises lasted even looking at the sixth circuit where the standard is much higher that states  the the plaintiff must state that he asked the officers to loosen the cops and they did not that is centering the sixer which is higher than in our circuit he did every one of those things he asked officers can you loosen the cuffs they didn't he asked the officers can you please wipe the mace out of my eyes they did not it's clear that they allowed him to suffer in pain when he was already in custody and on the ground there is no reasonable explanation for why this occurred it is so beyond my understanding that officers would do this to an individual when there is no need for this sort of force the need arises from a violation of a safety check counsel that there's been this was in the record but both officers that they're supposed to put two fingers just like judge bybee had suggested two fingers between the put the handcuff and the wrist this is supposed to be checked when the they didn't do anything like that in the officers to testify that that is the police procedure that they should have done and clearly one point the corner said it's hurting me my hands are throbbing they should have loosened the handcuffs they did excess the force was not necessary at that point and there's no testimony whatsoever the plaintiff's cordura was ever a threat and in fact officer cortez admits during his deposition plaintiff was never a threat a physical threat earth threat as a criminal and again i'll reiterate that there was no testimony whatsoever that the officers themselves believed that point of course darrow was fleeing from them from basically the basic math ten miles an hour he said he was going to place two and a half miles down the road we don't know how close he got to that but you know that's where i get the fifteen fifteen what about that description of the sequence of events in the city pulling the gun and that  car almost simultaneously i believe is when he says with pulling pulling the weapon and act the same time mr cord and it's almost simultaneous and mr karnow grabbing his cell phone again not after he didn't  a get out of the car get out of the car going to get a car he's pulling a gun when he's not getting out of the vehicle but when i asked you earlier about that i think you're even your version of that is that it was about a minute before the helmet only about a minute is that right i would say yes and with her specs of the description of the vehicles these were fully marked police vehicles are not cars that get little pickup trucks but there are blue and white with a full light bar across the top this shouldn't be confused as a kid with you know he's got a defensive position and from that position of the officers you know in the circumstances they don't know whether he's got a weapon whether he's hiding a weapon whether by but if you've got your arms crossed it's not like this you're going to be able to draw something like that him they could have asked they could yeah they could have asked that but they told him to get out of the car to ask him to do jumping jacks but it just doesn't seem like that would have been sort of necessary and of those circumstances in order to secure their safety you know they're asking him to get out of the car in order to secure yes right and then i wanted to address i mean i think the berg's case is instructive in the first case they found a fourth amendment violation but found qualified immunity because the law was not clearly established now that case was decided arrest for that and she gets upset and says no i'm not going to get out of the car to be arrested you know i'm pregnant and they sit there and dial up how to talk about debate how how hard should we case or should we dial it up to eight or seven good enough i mean obviously there's no threat in the groups case and that obvious no threat is not present in this case at two o'clock in the morning you know on a dark road after a long low speed