during this encounter between him and the federal law enforcement officers at the naval base and to a county defendant escalated this encounter which had been horrible only initially by resort to once the commander of the defendant's lieutenant easily realized that my client was holding a flashlight in one hand cell phone in the other hand there should have been a realization that there was no immediate threat posed to these officers that any claim that he was pulling a weapon out of out of a pocket is contradicted by realization that this is intact a flashlight in a  cellphone my client was not clean but had rather stopped his vehicle as soon as he had realized that it was law enforcement officers that were behind him he was complying with hundreds of their orders albeit slowly he indeed indeed if he provoked it does that make any difference it would tend to make the defendants reaction a personal reaction on their part they're offended by his use of language they are personally insulted they take it upon themselves at that point let's just leave this thing and i will show you where once to that effect rather than the military purpose a sort of leave which prompted them to act in the first place takes it to a completely different made a fundamental  question on the merits that that on the merits there was no food no excessive force to the police the officer didn't use excessive force just as a matter of law there is no constitutional violation here under all these circumstances because it was an an evolving situation that was getting out of hand fundamentally that's accurate and come to that conclusion with the district court erred in assuming facts are sorted by the case or not and with respect to the military that isn't there some kind of manual that their body of law that talks about what level of force is permitted at what level of activity  vehicle get away from your vehicle and so on  this immediately escalated his thing to jumping and putting their hands on him there's no proof that is uncontroverted that there was any kind of an order put your hands behind your back you know take your coat off we're going to give you a pat down here to make sure you have no weapons there's no information indicating that he ever got any warning that this was coming rather than simply an artery gesture on the part display sed fracture of his ankle the defense offered medical evidence that that could not have occurred from a kick or far of a blow you can see that you can see that the ankle had to have been sprained as he twisted in fell broken your arm broken you are not strained but broken yes after having don't investigate in myself we did and do concede that that was not the result of a blow to the back of his life nevertheless we still do have the photograph he is going down he hears that you know he's lee say oh yeah i'll show you or something to that effect and then feels a blow to the back of his leg in addition however we also have the injuries to the hands defendants action with placed my client next to one of the tires of his we have all parked there as everybody goes over it and goes to the ground however when you look at the persons of the defendants together explanation whatsoever as to how he got out there in the hands of position while he's unconscious counsel as i understand it after the events that you discussed and when the california highway patrol arrived there was a discussion with mr kenny a decision was made by the highway patrol to rehear and cuff him and he significantly resisted judgment grounds qualified immunity should be affirmed in favor of each of the pallies because the evidence does not show that any of the pallies violated mr kenny specht constitutional rights either by detaining him or by using and confirms that it's ankle injury was caused by his fall during that struggle to be handcuffed and to be visibly to resist being handcuffed what about counsel suggestion that there is a clearly marked bruise him the bruise that he photographed ten days after the incident looked like a boat to him it was not even any evidence that any of the police were wearing the type of clued in question moreover he eagerly please offer any medical evidence at all at least one officer with him someone fell on top of him and he felt a strike a something or someone struck his leg under his own testimony therefore the bruise could have been caused by someone falling or stepping on him accidentally during the fall which was caused by his resisting the handcuffing he can students that he knew the officers were attempting to handcuff him and instead of putting his hands behind his back he kept pushing and pulling his hands forward in front of his body so the officers had to use force on his arms and shoulders an order to get him handcuffed is it your contention counsel their injuries accidently received in the car in context of being handcuffed cannot be excessive force excessive force requires intentional acts leading to intentional results are intended result not necessarily your honor but there could be a circumstances or to be a result an injury the could be an excessive force claim even if the injuries themselves were accidental or unintentional the force would not then be the application of the accident the force would be the application of the handful of themselves with resultant injury which was accidental in this case it was not unreasonable to make the decision to handcuff mr kennedy when he was being provocative irrational and unpredictable it was the a lot of this is something that goes off on belief which version is the story you're going to believe you all are there is no credibility determination which is necessary to determine the application of qualified immunity in this case the reasonable a mark there is a bruise to us like there was no medical evidence of whether or not that bruise was caused because of the initial fracture because the twisting of the flesh whether it was caused by someone falling on him there was absolutely no evidence of what that was caused  pelleas violated his constitutional rights and took actions which were so clearly unlawful that a reasonable officer in that office his position would have known he was violating the constitution there was no evidence of that kind credit misters county's testimony there was no evidence upon which a reasonable jury could have found that any of the appellate violated mr kennedy's constitutional rights either in sustaining him or in using force to apply the handcuffs the evidence of gratuitous force there was no evidence of force after he was handcuffed all of the evidence including mr kenny's own testimony was evidence of a struggle over handcuffs and a fall which resulted from that that struggle was nothing upon which the jury could have found a violation of constitutional rights by any of the individual towns and even if the evidence had been sufficient to show any violation of constitutional rights the guarding restraining a drunk driver outside a military base and a lot regarding the amount of force which can be used to apply handcuffs to a resisting suspect was not so clearly established that any of the