music and essentially what you had is a police assault without really any probable cause somebody had called and said there was a fight amongst quote gangster type people there's no evidence that there were any shaved heads gang colors  clothing weapons except for one again from taking a light most favorable to my clients and there was a knife that was found downstairs and i guess the nature of that is it's not clear what it was found it was found on the way up there would seem to not be connected unless one assumes the mexican people on the second floor would be connected to a knife in the that would be constitutionally port which way more than was found on the first f reason that anybody from the party would have dropped their knife there necessarily and it's on the way down that seems to be after the fact justification but there was no proper assessment made of what was going on the police attacked you know police assault based  basically on this idea of these gangster like people with no justification they were swinging billy clubs buttons i guess they were screaming or yelling us but said of these to people they were shoving and pushing people without any apparent justification looking at the issues one by one sonya who was never a quitter was never convicted of any charges does not ever even under the police intervening sonya leans over to see what's happened to her brother in law tony who is being pulled on the floor there is no indication that she she gets a course in the chest right and she instinctively reacts to a man pushing in the chest and pushes back and says that force you know and then she realizes there's a police officer and she raises their hand and steps back in the universal symbol of somebody who is not resisting and surrendering and then she's assaulted because the officers jump or tackler and bring her down to the ground violently so she gets her face and put their knees on her back no way justified by the fact that she's raising her hand and stepping back if a person cannot retreat in that fashion then they can never do anything to avoid being be northward violently thrown to the ground once that occurs her mother carmen who is forty nine years old a frail build basically says from three to four feet away you can't treat my daughter like that what mother wouldn't she doesn't actively intervene like jackson she just says it and the officer turns around and i say that the facts  later a son is being taken down the stairs she's not resisting she's not doing anything except she says a bad word when she refers to the officers that i used to trust you and why are you doing this they punish her for her statement just like they punish carmen for a statement like shover on the stairs the only reason that she is not seriously hurt is because perhaps she's younger and she's able to avoid being injured but that's just to fortuity not through any concern of the off officer for safety again she shut down the stairs and what does that lead to that leads to her husband who's down sitting there saying it's hers his wife shove and almost losing her balance on the stairs he stands up and says that's  left in terms of qualified immunity now if this wasn't she perceived as interfering in tony's arrest that's what he says but the only thing that he ever says is that she  leaned she doesn't say that she tried to get the end she tried to do anything she leading to see better because her view was being b yes it is yes it is but they never convicted her of anything and what she did is she stepped back and held her hands up in retreated and was doing nothing to resist at that point she was violently taken down by several officers i'm sorry she didn't question she a man pushes her in the breast i say a woman instinctively pushes back until she recognizes that it's a police officer she didn't push the police officer when she recognized with the police officer she held up her hands that if she shows a police officer even though she didn't know the police officer the author may be mistaken but under sassy a i guess he can get away with that mistake i think so  charged with anything now whatsoever tackled from behind without any notice if you recall that's the gay man that was attacked from behind and of that the court found that it was impossible or should not be done to determine the level of force that was involved at that stage that summary judgment sta i think that was taken out of my hands by the fact that he pled to resisting again on a default situation is not an victory it was after the trial but in the first instance he's taken down without any problem cause even they say he wasn't doing anything aggressive at his back to the police he was holding his arms act he was actually restraining his father in law was apparently upset and whatever verbal altercation had occurred involving the father in law's nephew and tony was being the peacemaker but no that at that point and it was only after that again taking the evidence of the light most favorable that he was punched several times and maced so it's either ends of that resisting issue that we contend that there was there was excessive force the masing occurs after he has stopped resisting when when the officer says quit resisting and he ceases and then he's punched and then he's missed i know there's a conflict but that's for him that's for the jury to decide respect  readily who was the organizer of this happy event party for her husband tony goes up to officer tourista says officer what's going on and for trouble she gets elbel in the chest and goes down to one  it because there was absolutely no justification to put his hands on her she didn't do anything she wasn't interfering with his progress she wasn't obstructing she wasn't convicted first directing facts you acquitted she just is going after and saying any what's going on officer and for that trouble she gets elbowed in the and the chest and goes down there because they will call because of kind of a brick of that's what was said to them that there was a fight at the bar which was not a major portion of the banquet hall but there was a there had been apparently a fight bottle verbal altercation at the bar between about two or three men who are right at the bar area and somebody from the restaurant called and said their officer what's happening and that's when she gets up and goes down this all took place of the far you know city this isn't a banquet hall it's a large banquet hall the bar is a small portion and one portion one part of the banquet hall the entire party is the banquet hall which is on the second floor there is a bar in the banquet hall and that's where the fight occurred the verbal altercation but it was not a we say it was not a general nail ate in the has been described by the officers with bottles flying and so forth there's no evidence of any broken bottles and oh yes there were downstairs either before or after we're not sure right but they did made no attempt to assess that they didn't turn on the lights so their tactics placed in the semi darkness they claimed that they announce themselves but it would be difficult over a live band they made no attempt to shut down the music they just went in and swinging clubs and overturning tables and screaming from profanities of people this is like a species of contempt of cop it's assault there are people that you know i've been in those kind of cases where they try the rodney king case where the person at the end of the at the end of the pursuit is punished because he caused the props to have to pursue him it's a species of contempt of cop and they just didn't give any opportunity for anyone to explain calm down or do anything they just attacked and that's why i call the police assault and that's in the light most favorable to my clients as require yes there is a conflict although there is no reference in the record to that or in my my opponents so brief to that particular portion of the record but there is that conflict at least expressed in in the well i think you have to look at her evidence the search case and that's in the light most favorable to her and so i don't look at the other people's comments or is that part of her case but it's an interesting question i don't think is instruct on that point it talks about looking at the totality of the circumstances you know does that mean in every other case or does it mean just i don't i don't think so but that's something i guess that's why your justices and i'm just a guy think that i'd like to address the question that was raised at the end of counsel's argument and that is what evidence does the court have to look at in addressing the question of qualified immunity in their reply br the plaintiffs in this case has suggested that what the court has to do is very carefully segregate out the evidence of each particular plaintiff and disregard all of the evidence of that that all of the any other admission that any other plaintiff make that that's that's true i think that what the case law requires is that police obviously the court has to look at the evidence most favorable to the plaintiff that doesn't mean that you disregard everything that everybody else said because one of the other elements of qualified immunity is a finding by the court that based on the totality of the circumstances was the officers conduct object  menace is claimed and i don't think the question of whether or not she heard the police officer say that is relevant to her claim for excessive force but say it was i don't think that the court has to assume for the purposes of the qualified immunity analysis she didn't hear it but that doesn't mean yes that's different than she doesn't and that doesn't mean that the court in assessing the totality of the circumstances and whether a reasonable police officer could have believed that his actions were justified couldn't take into consideration the fact that he said were the police were here everybody sit down shut up go away if you don't want to be arrested and the plaintiffs are suggesting that you have to assume that they didn't say that for sonya menaces purposes because she said that when officer lee pushed her away after she leaned around him to see what was happening to tony make that that push was excessive force and then she argues that when out when officer chamberlain an obscenely were escorting her down the stairs chamberlain's push as they're walking down the stairs was excessive that was the person on the stairs i was the push on the stairway correct i mean it can't be that you don't look to any other evidence but it it really is a question of looking for the evidence is related to that person's name so it's kind of a fine line yes but other relevant evidence can attach can apply and be relevant to each individual's claim regardless of whether that person said so for example sonia and this was watching pinned to the ground that was his view after he was on the ground that is correct into the ground after he was on that the officers had taken him to the ground they were attempting to get his hands behind his back so that they could be handcuffed according the officers he wasn't cooperating so one officer punched him and one officer sprayed him in the face with pepper spray him according to him at all happened at the same time the officer said stop resisting he was punched he was hit with pepper spray stop you  that officer chamberlain reflected in his police report are different than the allegation that the enemy's making more intimate is walking toward the bar because somebody tapped on the shoulder while she was dancing and said hey there's a problem at the bar want to go over there and check out what it is so she's walking to the bar officer torres passes her that's the first time she becomes aware that there are police officers in the in the building he gets a cup excuse me he gets a couple of steps ahead of her and she tries to catch one one call that said there's a there's a gang fight there's a big fight up in the banquet room with gang types they get to the premises and the the restaurant manager says there's a big fight upstairs people things are getting testified that a restaurant employee was holding somebody around the around is  this happens after sunday and then it's had already leaned over and around officer leave so he feels like he was interfered with by sony and then as it occurred after well he's in the process of actually taking ton by so many a menace and so many a menace that pushed him he didn't know whether that was going to happen again he's got so many amends in handcuffs he's escorting her out of the premises it's reasonable for police officers to want to move arrestees out of the premises as quickly as possible so that they can the mother comes up to this is what are you doing to my daughter and officer really pushed her out of the way and said something that used impolite very impolite language and i'll admit that that's why i find the use of the language she says look i'm over here i'm not yelling i'm not upset i'm not even there and all of us have but she says she walked over to him she says she approached him she doesn't say that the officer approached her so the officer or she obviously got close enough to be but he approaches officer lee well officer lee is in the process of taking somebody out of a room that the plaintiffs can see it was a very chaotic situation it's a very chaotic situation before the police got there menace wasn't arrested the officer just pushed her out of his way so that he could get along he could move on well i don't think so i think the circumstances the fact that she fell is very it is very unfortunate she says that but also the fact that she is she acknowledges that the really that part of the reason she fell is because she was wearing high heels suggests that it wasn't such a significant push that if she wasn't wearing high heels that it would have caused her to fall she doesn't there's no way when he when she got within arm's reach there's no it there's that she was she approached him when she first noticed him she was several feet away from him but there is no evidence in the record sonya managed doesn't say carmen m n s doesn't say nobody says that the officer approached carmen jimenez i haven't heard any i don't i don't believe that there's anything in the record that says she stepped in front of me he says get out of my what she said he says get out of my way and he pushes or he pushes or her way so i guess that would be suggestive of the fact that he put she was in his way or that he reasonably believe that she was getting in his way  bates was responsible for controlling the downstairs bar area several members of the party had come down and were waiting in the downstairs bar area the officers had to come by that area in order to escort arrestees out other officers were coming up through that area to get up to the upstairs area so there was a legitimate governmental need to keep that area secure there they're older than our guard i don't believe that there were in house security at the at the restaurant your honor there's no evidence that there was in ho moves up and he pushes them up against the body well there's disputed evidence on that and taking it from the plaintiff's perspective he didn't ask him to sit down but but what you know what what officer ha d the fact that he pled guilty suggests that it's my understanding that it's my understanding that he pled guilty to disturbing the peace but i don't know what that charge of rows out of i don't know whether it was something that happened upstairs the record doesn't indicate it might not the record doesn't reflect one way or the other knife comes from the supplemental excerpt of the record page for it's a restaurant employee who is testifying that one officer i believe that officer chamberlain was first on the scene he didn't go upstairs he waited for backup and so other officers then arrived on the scene and the testimony is on page four lines one through five when the officers and i entered back into the building the next gentleman down the stairs after mr mendoza was a gentleman and i heard the police say look he has a knife and quote and then i saw him as the other officers he threw it into the corner so it's clearly somebody coming from upstairs with a knife and i don't recall i apologize john i don't recall where in the record there was a reference to a switch apologize if i if i misled the court it wasn't my intention but i do believe i do believe that there was a reference to the fact that it was a switchblade i just don't remember where in the record that was a question that troubles me is is with respect to carmen if you take their examples it was a fairly extreme response to a at least as to their own particular circumstance they hadn't really done anything they were more the bystanders is that something that really we would need to go to the jury in this circumstance because if we decided as a matter of law in effect we would be then given the credence to the officer point of view i don't think so your honor and again and the qualified i think that you need to put it in the entire context of everything that was happening that night and i don't think that you can do for i don't think you can simply say that carmen and then his was exercising her first amendment right to speech and well i agree that she was and i agree that what if that was the only thing going on that a police officer wouldn't be able to push or if a police officer is walking down the sidewalk and somebody comes up and says i don't like police he can't push her into the street and knock her down but that isn't what was happening that night is a very chaotic situation he's got an arrestee that he's physically escorting out of the building he had he had just been pushed by another woman in the facts only and then as he didn't know whether or not somebody after use of inappropriate language out of the building to make sure that they're safe that the police officers are safe and then everything else to say i think it's obviously very unfortunate comments fell but i don't think that the force that was used was objected le and reasonable under the circumstances and i don't think the fact that she suffered an injury or at least alleges that she suffered an injury can be used to show that the force was excessive under the circumstances thank you thank you very much f circumstances involving a fifty nine year old frail woman even on a high heels whether justified in no way is there any evidence showing that she was obstructing him in any way she came up to him and it's just one of the he turned to her and said the words that you both know all of you know that he said not only showing sexist behavior but very aggressive behavior without any regard whatsoever to her health and well being shocked or so she fell backwards  sharon permanently injured her unfortunately for everybody involved in this situation but the issue of whether was excessive force or not in the as a parent i would say the most appropriate time for you to say what are you doing  right because you cannot use all the griese of force just because there's probable cause to arrest a person get out of my way you f ing b because he has this aggressive mentality right now and even he doesn't recognize that she's a little lady and shelves are backwards in such a way that she enjoys herself the issue with appear like everybody downstairs was minding their peace and q s and doing nothing other than waiting for people to come downstairs again a statement made not a violent ac