raised implicitly in the facts there is just another way of arguing the facts as it has to do with the exiting c of the circumstance the exit didn't see of the circumstance which murder  ok thank you for the the case we have presented essentially says that there are five contours of the law that were clear to the officers and to the corpse and did not require specific articulation that that argument may be narrowed to say against the charge that this is just a general statement that in fact it is not and so i would like to take the five sets of contours that anderson calls for namely the united states supreme court of the circuit the hudson case that was decided by the in of the utah supreme court and then two sets of texas statutes those are the and personal or body rights all the supreme court had another case before it a few years before they specifically say say that this is the first time that they address it it's on a clean slate and what they pointed out was that the fourth circuit fourth amendment is taken in the context of the fifth amendment that is the fifth amendment says you can't force somebody to come and testify against them but when you're taking evidence from their person then the question is on what basis can you in the fourth amendment justify going into a body a body cavity or beneath the surface the supreme court has been laid out some very careful requirements the first was that there had to be some sort of serious belief that there was that you should be able to go in you're go find the evidence there the second is that there be some careful this because there's a balance between what is at risk in the human body versus what the state may gain from it that there's any record evidence that they were concerned that she was going to kill herself the out but if she you know if you swallow a large quantity of drugs that pretty well follow what you want or that there is no evidence that they knew she had swallowed they have they have it in their record says one of the officer said he dropped he heard something drop and the other officer says let's get him out one by one so there wasn't really a sufficient basis even to believe that there was evidence in her mouth and this is on page two of counsel's brief there is a reference to it's behind her back so the only record evidence we have is it should either be on the floor or the hind or back not in her mouth at the officers saw some evidence that she had something in a mile well they are not of not at the beginning of what i what i recall your honor is it hit the floor they heard a sound and they thought she got her hand loose and it was behind her back and those are the two statements right councils brief on page two some point there but they figured out she had it in her mouth yes that is absolutely the truth your honor but it's after the application of the force they gave her three seconds initially to open her mouth they applied the force of the neck because they believed the drugs were in the mouth about to be swallowed we may speculate that that's the case and it may be a fair inference to draw your honor i'm not saying no but when when the court addresses what was the evidence in advance what we had objective really was a sound and something behind the back in a direction let's get them out one by one they did in fact go and i think it's fair to additionally just started applying that force to the nec in the district court which agreed with you that there was if found excessive force but i didn't read it to be saying that they didn't have a basis for believing she had the dry it was not addressed by the district court your honor i think the court is correct about that and i'm not saying that that's an unreasonable inference to draw but w one asks me to speak on behalf of my client there was not evidence to say it's in her mouth there is evidence to say i was either on the floor behind her back it is clear at some point they must have believed that and i think that's fair and they did begin to press but i couldn't find any case in the fifth circuit which gave so little time for a person to respond when they begin to press we don't know we simply don't know what was keeping her from responding was it because it was already in her throat or because it was being forced down or she simply didn't want to open her mouth either way interim herb or the court says if you're going to go into a body cavity or go below the surface and invasion of the body must require that there be something that is essentially risk free or relatively risk free pain free and trauma free none of those three things were available here even as a matter of common sense but certainly not after the one nine hundred seventy seven case that  hobson i believe that the person was pulled out of the cause of the the car and thrown to the ground that's my recollection that the the concern though that was expressed in the court it's clear i mean it's a utah supreme court the california court of appeals has held the same thing twenty years before we know as a practical matter there warnings all over the place for kids not getting plastic or small things to ingest choking hazards are clear and obvious and they do not require a court of appeals or the supreme court to point out that specific things where your client certainly didn't respond that way in fact i'm alone confused because in your brief you say you're complaining about excessive force by using a potentially they heard something fall they saw her reach under her breath chairs and pull something out and put it in her mouth i don't believe they they saw that i believe they surmised that the camera would show it though and i believe the court's correct i'm not trying to argu well that's what they said that's what they said later but but that the camera was what captured that they didn't have direct information about what she had done and it is true that she pulled her hand outside because the handcuff was not put on tight enough apparently to restrain her but as the officers were saying which is what we are judge to judge and then bought as they were saying it as it unfolded but before they began to fly force they had made some conclusions apparently and they went after invaded it can shock the conscience here we have a lady is essentially brain dead within one minute less than one minute after the officers come to try to search her there was no basis for the search there was no need for the search they would be able to be searched by female police officer but if she swallowed it it could take a couple days for that to pass through our system your position in the utah court talks about this because basically that they could have detained her for for two to three days while waiting to see if this  substance they suspected she swallowed was passed through a system in comparison to the two or death yes you're on what basis would they have to hold her for three days because they they have a we are saying there's no basis to believe there's there was any any drugs involved at all you know what i'm with respect or are that's not what i'm saying i'm saying that with the officer saw initially was no possession of the mouth they had already had a tip that she lessing drugs in her underwear and they set up this traffic stop in order to arrest her so they had knowledge that drugs were in or about her possession they had probable cause of my judgment to believe that she could be stopped and so i think they could have held her either before the acquisition of the evidence or after reviewing the video camera they could have seen that she had done exactly what the quarter said that she put it in her mouth i'm just trying to keep straight what the officer saw and when they saw  of the mouth i believe absolutely but there is a balancing test here between the risk run and and the benefit gained in this case again nothing prosecutorial for them to gain that evidence they would have sufficient evidence by the by the video cam to see what she had done and whether they got the the evidence one day on video can we show what was in the was in a baggie she swallowed well what was it that would show she put something in her mouth exactly know what it w not until the fecal elimination that's correct you're not i mean look look really as a practical matter we need to get to the baggie from an autopsy or we get to bagi from faecal in a nation in a civilized society where you have people presumed to be innocent before they are convicted death is not an acceptable measure of what should happen in advance of some adjudication oaken round it probably wouldn't happen your honor we don't know why she didn't open mail we don't know whether the first time squeezed it down we simply don't know the risks are too great when messing with the arrows and which is what judgement sent found you're saying police can apply no force whatsoever when they suspect someone s evidence not not at all you are i'm saying that they will use measured force which is what would have been appropriate i think i think trying to squeeze that open and see where that would work and if it didn't then then then you have alternative ways to add different than the way they they they well known i've used in a restaurant to save somebody's i know how that stuff works but as a practical matter those are in precise and what shermer neville and mcnealy all speak to is the care which must be given to a citizen who is brought under federal or scuse me under custody arrangements nebel has said that it needs be safe secure and simple i may have those words wrong and in basically says you can do it under stringently controlled circumstances no one could argue that these were stringently controlled it's not as if they were they were taking something like body fluids through a marber seem to require in the supreme court opened the door a little bit but not broadly not to say that everybody cavity or body search can be done with imprecise methods of means particularly not when there is dangerous and clearly dangerous as these were here the district court respectfully erred by not understanding or dressing the fact that this was a body cavity search a body intrusion search the rules were clear since one thousand nine hundred sixty six added to in seventy seven so in those circumstances with which she was trying to save her life your honor but she wasn't resisting arrest she wasn't trying to flee the places that this court has dealt with the same in taking her out of the car she was resisting not not taking out of the car but but she was dragged out of the car she was resisting trying to keep her life i think if you view the evidence and in the most appropriate to the group to a pulp thank you knowledge in that this is a tragic situation and as i rushed to the legal arguments i don't want to brush past that since it affects human beings who are here with us today turning though to those legal arguments when i'd like to do in response to a palance argument is first address what it means for a law to be clearly established secondly i would like to turn and show that regardless of how we define the right issue whatever level of generality we use  here the district court was incorrect and this court can affirm summary judgment on the ground that there was not an excessive force violation here and then thirdly if there's a little time left i would like to address the proper summary judgment burden and sort of reframe our perspective ere determining whether or not a right was clearly established must be defined with particularities it can't be just a general proposition of law and what that requires and we know now from recent supreme court case law is it requires some precedent whether that's robust consensus of persuasive authority or whether that is a controlling authority they require some precedent showing that what the officers did was unconstitutional there is a minor exception to that in what the judges are calling the justices have called in excess of an exceptional or an obvious case in the white versus poly case for example the united states supreme court rejected the very argument that appellate seems to be making here which is to look at garner and to look at graham and to assess the risk factors and based on that to say that the law was clearly established at the time but as i'm listening to the argument from the present counsel in reading the breeze i can't help but get the sense that that this is simply a recitation of the general law and  expecting that that that was that that clearly established the law and it's important to note too that appellant's theory in this and saying that there was a case law out there authorizing the officers use of force in this case flips standard on its head it's not that the court needs to see case law that authorizes this conduct it's that there needs to be case law that prohibits this conduct and there is an absence of such case law here and as the district court relied on below correctly in determining that the law was not clearly established or at least that it did not clearly prohibit the conduct at issue here there were a couple of cases one being the  from the defendant's mouth by grabbing the defendant about throat choking him and attempting to pry open his mouth by placing pressure against the jaw and the district court determined that the what happened here is that the item dropping for an officer stephens heard it and he called officer carver in his radio to come back over there were open your mouth there were yes he was outside he heard the lot of the item drop because officer stevens was the second officer to get there and he walked up as officer carver caver had just placed the passenger with  so officer caver had said you know officer stevens you know take a look at them they may be hiding stuff we heard they may be hiding something in there i think it was they're busy or so he hears an item drop at some point in this and he radios officer came to come across to grab a right hand said yes she's got a behind her back right here at that point officer caversham to splash like towards mr rat and instructed her open your mouth well mr right refused to comply and at that point he kept her mouth closed so i'm not sure what it was that prompted officer caver to know that she had something in her mouth but he did before reaching for her mouth shined the flashlight and say open your mouth and that's displayed in the video evidence and then  objects in the situation you know i don't recall your honor i don't how do you respond to the district court's conclusion that the government's interest was limited here because there were other means to ultimately obtain the evidence and in a more controlled environment the primary way i would respond is that it flips the qualified immunity inquiry and i'm talking i'm talking about just the on the reasonable is what you want us to address just on one of there's a violation for us to get clearly established for a second but  and this this court the fifth circuit not and that the ninety five case from the utah supreme court but this court in two thousand and sixteen in a case cited by appellate in the reply brief his brothers versus sauce in that case the officers this is an excessive force case where the officers forced a person out of his car and the officers because the the that had been the vehicle was obese and disabled and intoxicated  when they pulled him out he fell in landed on his stomach or back and he ended up being rendered paralyze and this court and analyzing that use of force concluded that it wasn't on reasonable or excessive even though it resulted in that serious injury the court noted that force is not necessarily deadly even where it results in death and it's not i don't know you're going to my question of the district courts that the government's interest in applying force was limited because entitle a suspect a five minute waiting period to destroy evidence you know officers have a legitimate objected to preserve evidence you know if we think about  u folks in the world you know they're very so it's not that people committing crimes are all naive and silly and in unintelligent they're people who are crafty and who are sophisticated and who plan to execute things  government has to take the opportunities they have sometimes to preserve evidence or else they'll never get it if you give everyone a five minutes to destroy the evidence they're going to destroy the evidence and even if you can take someone back later on and you give them a drug evidence from a suspect who's suspected of having does that answer your question your  with a couple of more recent supreme court cases you know hope said in dicta as this court noted that sometimes even generally articulate rights can provide clearly established law for purposes of qualified immunity and in that  case based on circuit case law not based on the general proposition of law found that the law is clearly established but that was in tension with the later statements by the u s supreme court in the years ok where qualified immunity was affirmed because there was no case law that squarely governed the facts at issue and then in the kid case the as the as this court in morgan versus once and noted there was an exasperated tone at the united states supreme court had in deciding that you can't define the right issue with it in permissible amount of generality is some now if we fast forward to two thousand and seventeen there have been several cases from the u s supreme court  have addressed that issue and it seems clear now that we were talking about hope the limited effect that it could have on our facts here is simply to ask the question was this an obvious case and if the answer is no then we know that you need the precedent that we were discussing just a moment ago that clearly establishes that the officers conduct was unreasonable or clearly excessive like in some respects in this regard at least like the pool vs city of shreveport from this court in two thousand and twelve case it was also a traffic stop excessive force case and that was a case where the officers dislocated the suspects arm in arresting him even though he was pulled over initially because he had unluckily i might add thrown something out his car window it hit an unmarked police car ducking behind him with an radio to mark a police car to come in they had had probably cause for some sort of violation and address with him but in their heat the court noted that he did his resistance over time and the force was escalated proportionally with the resistance  once the officers realized that his arm had been dislocated at that point they they turned to lifesaving or or injury repairing measures and that's what happened here as soon as the officer saw that mr rats are muslim  and that her face was turning blue they were no longer trying to get any sort of evidence from her this was all about saving her life that's the only reasonable inference to draw from the timing of how things played out as well as the comments that were being made by the officers at the scene that th e last point that i would raise before turning back over posing counsel is that summary judgment it's the plaintiff's burden to rebut a claim of qualified immunity and that this court has called that just as recently as this past year a demanding standard so as we're discussing a reasonable this or excessiveness we're discussing whether law is clearly established or whether or not there was a constitutional violation it was the deed the burd demanding burden on the plaintiff to come forward with precedent that showed that the rights were clearly established and were violated and also to show that there was a violation of of the fourth amendment right against  case also involved a home invasion not a traffic stop so there are all sorts of things that make those cases in applicable and we urge the court to affirm the granting of summary judgment whether that's by affirming the clearly established callahan decision and i made the decision not to cross appeal but we addressed it just as it came up in th believe counsel the councils stated that as soon as the officers became aware of the fact that she was in extremis that they initiated a life saving measures i'd ask you to take a look at the video and also at the appendix to our brief to indicate that three seconds of warning followed by force twenty two seconds of struggle and then one of the officers officer caver apparently angrily started trying to pull her while she was still strapped in got her feet tangled up and it was only after that anger was exhibited was it clear then that or on became live this is in the district court's decision or opinion and so the court will s that the timing of it does not support what opposing counsel says that is soon as they know that in fact there was a debate after she hit the ground for one of the officers should we take her and only then did tabor say no and she's eaten a bunch of dope let's not  don't think it's it's fair to say that there is an absence of malice and one of the points that we've raised or absence of anger is whether the district court improperly applied the test for determining what evidence there is in support of summ back because there was evidence about the words being slammed on feet and then on heads or hitting that indicated that there was some basis to believe in a jury could find that that the malice or anger of the officer would preclude the grant summary judgment on on qualified immunity grounds we have also run across a case or a verse a city of columbus not cited but i believe it is referenced  it is it references schmidt the great which is footnote thirteen of the so you need it there is a body of law in the fist circuit about about how that is to be interpreted i don't believe the district court met the standard to evaluate the evidence in the light most favorable to us secondly the white vs partly case is really while it is from the supreme court and i wouldn't say this in if i were in front of the supreme court but it's essentially irrelevant to our point here that case had to do with  sentially a gunfight at ok corral there were there were officers who arrive at various parts of the scene and saying it's factually similar age are saying it states the principle which isn't new in that case they don't need a that's correct close factually closely factual case to show that there was a violation to put officers on notice that their conduct was highlighting i agree but your honor it doesn't really add to the body of law that we have been out there for years that's right what how do you get around espinosa earlier fifth circuit case given this case law saying it's your obligation to point to a k showing the officers had noticed what they did was unlawful my recollection is that has been always as one of those ancient cases and well before smart i think it was the one nine hundred sixty case and you know aggressive use of force to the neck was ok it's your obligation to show this use of force was unlawful can you point to any physical case suggesting in this type of situation that this would be unlawful and let me catch the court's decision i think the court's asking me can i show some that affirmatively says it's not ok as opposed to saying that the circuits dealt with this issue and it's not dispositive and the answer is no i cannot but i would again point to is is the seminal case it has never been overruled it's not been modified and it speaks to invasion into body cavities or the below the skin surface and because of that a little application of force to the neck it's not i don't i'm not sure how it's an invasion into the bloodstream or something like your honor securing evidence from the mouth is what was sought here and the way to get that was to force it open imagine  andersonville during the civil war they cut the limbs off they did it because that was a crude way of trying to get something done medically that did not happen here the court the court required precise stringent well controlled processes if you're going to try to go into a body cavity the mouth was where they were trying to go and it is in that sense analogous i don't think there is any case the takes away from general rule everyone was on notice