but please the court my name is vincent valentino and i represent the defendant appellant in this case matthew ernst your honour's this case is very fact driven and probably the key exhibit in this case is going to be exhibit number one which is the map that was drawn by the connor supreme court ruling on excessive force i understood what this map actually represented and what i'm going to tell you is that on may twenty ninth of two thousand and fourteen  nine eleven caller at this we include in why more nebraska reported a domestic assault involving a patrick cahalan and melanie kelsey deputy ours too as a gauge county deputy arrived late to the scene and was advised by a fellow officer that kelsey had earlier interfered with police as they tried to arrest mr kaz when the man who allegedly was reported to have assaulted her at the pool there were also i believe four children three of whom belong to miss kelsey that were at the pool ranging in ages i believe from maybe four or five to fifteen the older daughter being a little young lady  madison kelsey according to cosies version of the events she was standing to the west and slightly south of the employee parking lot that is in exhibit number one there's also a parking lot to the south that she had apparently parked her car in a long with some other women at the pool that reported this incident to the pool manager who then called nine eleven rather than what judge gerard found she was not in the parking lot she was fifteen feet by her own testimony south of the parking lot into the grass area of exhibit number one the doors to the pool were were were words the witnesses coming out of the pool at the time mr mr catlin was in a police car that was in its employee parking lot that is located actually to the also physical confrontation i think the chief was either thrown down or knocked down to the ground misc kelsey in the meantime was apparently voicing her objections  and directing various comments to the officers that were trying to do the arrest the two deputies from gage county showed up and parked in the employee parking lot somewhere behind behind a police  city of why more meantime the witnesses were coming out of the pool there were three women that were involved in this one who passed away before we could depose her but the other one one of monica's settle a check is i very thing is a lot of things are disputed by by miss kelsey in this case but what i'm telling you it can be gleaned from the record she was no more than thirty to thirty five feet from the pool doors she began to move to the northeast and what she told us in her deposition was that her daughter madison she could hear her screaming or yelling and that she was heading in that direction to find out  i'll say this she said some bitch is talking shit to my daughter is what she testified to and that she was going to go there and find out what it was deputy ernst was directed apparently by the city officers that sh interfered in the arrest of mr castle and and she headed in that northeast direction he tried to get her block before he would get to that area where these witnesses were not more than thirty thirty five feet away i have no idea why judge gerard came to the conclusion that she was not a a threat to anybody at that pool that she was so far distance away when she's admittedly would by her own testimony within twenty to thirty feet were the pool doors worth of the to the village of why more pool needless to say if one looks at and she also testified that she felt first behind her she also testified under oath that he grabbed her hand and said get back here and that she continued to walk because she thought he wasn't doing anything and then he and she admits that he bear hugged her and took her to the ground and unfortunately she ended up with a broken collarbone as a result of it what what i want to are we required to accept the facts and the plaintiff's exactly and that's what i'm telling you they are her own admissions in this case i'm giving you i'm not even giving you would what would earth to say i'm not giving you what the independent eyewitnesses that reported this thing are saying i'm giving you what she said under oath during her deposition and i'm telling you exhibit number two which was drawn by her and all the markings on this are hers is exactly what is the facts from her perspective of this particular case whether you get to the legal issues you've spent half the time on the facts which we ran but why was it reasonable for him to  and use the force that he used and why why wasn't that a violation of stablish right is that when it comes down to you sure let's talk about those gram factors number one the severity of the crime at issue she she was later convicted of attempted obstruction of government operations and disturbing the peace there's no question that she could have been prosecuted for resisting arrest because the officer had a hand on her she basically wasn't going to wasn't going to allow that to happen she kept walking in that direction of those witnesses because as she says in her own testimony you know somebody is talking shit to my daughter i'm going to i'm going to find out what this bitch is saying to my daughter what was he arrested her for at that point  resisting arrest at what point in time that she resists when she when she refused to submit to his grabbing her hand and saying get back here what was his authority to grab her hand and cesar well because she had interfered in the investigation involving her domestic partner who was patrick chasm that was at the inside the police car and she was fifteen feet away from the police car on the grass and the city of why is trying to arrest her for interfering with the castle and matter yes yes that's what that's what he had been told to do by the city a one word chief of police that she had been interfering with the arrest of gasland and and he she was directed to stay away from the the police vehicle that he was in you say he was trying to arrest her for that he grabbed her arm to try to seize her and right broke away yes and then why was it reasonable for him that he was ground with a bear hug why was that reasonable because an objective officer under his circle under the circumstances as a present of themselves he was trying to prevent a worse confrontation between her and the witnesses the record tells us about all the officers that were there dense just does the record have a does a record have a high dimension for the off no but if you i mean if you look at him he's and he's slender i mean if you look at exhibit seven that i had a list he's he's the last one here in the group he's reported to have slapped her at the at the at the at the pool party yes that's what he was convicted of event in the in any event then the question is whether the suspect poses an immediate threat to the safety of the officer or others and this case the objective evidence is that the the deputy was trying to prevent her from getting into a conversation or threats toward the people that had reported her her version of the facts as she says that i heard i heard somebody talking shit to my daughter madison and i want to find out what that bitch was saying that was her that was her explanation in her in her deposition why she was moving to the north these direction the other thing is that whether the suspect is actively resisting are attempting to evade arrest by flight there's no question she's moving in northeasterly direction she admits she's moving in that northeasterly direction toward the pool doors there's no question that the witnesses that reported her were in that were in that area and there's no question that her daughter was out there the fifteen year old talking shit or whatever the whatever she admitted to that she heard screaming she said her daughter was screaming at at this monica settle a check and there's no question that kelsey herself admitted that she was it was senseless check that she thought had reported them to the police that ended up in this situation so what i would ask the court to do because this is the facts pacific and i'm taking the evidence that it's in this record in the most favorable light that's available under the standards but i also tell this court that after this case was decided this court decided a series of cases starting with ehlers versus study a rapid city it was decided in january of two thousand and seventeen this case was decided our case in vs yankee i would i would just draw this court's attention to the precedent that exist in this circuit regarding cases of similar facts ehlers being the most the most important to me counsel again i'm joyce schaeffer miller here arguing on behalf of melanie kelsey who also attends the argument here today your honour's i think the first thing the court ought to do is look at the fact that my opposing counsel has argued on at least three separate occasions that this is a very fact driven analysis that one must do to decide to overturn the motion for summary judgment with this comes before the court on the defending motion for summary judgment and the fact that it was denied and it comes up on an interlocutory appeal based on whether or not mr has qualified immunity and i submit under the case of aaron versus shelley six twenty four fed third eighty two if the order turns on issues of fact rather just make that you disagree with the show or or did he describe you there really numerous your honor first of all my client is in fact a five foot tall one hundred twenty pound woman who was dressed in swimwear with a t shirt over top and accompanied by three children when she was at the weimer pool on this evening in question she was not with her domesticity partner patrick castle and was a family friend that was there with her and that is disputed throughout their i know that mister valen valentino like to say that that's a domestic partner but ms ms kelsey is a married person that is not her domestic partner she testified that she was waiting by the pool doors and she was waiting for her husband to come to the pool to talk to the officers about why they had put mr catlin in the back of the police car she testified about the fact that and i believe there is evidence in the record from the other officers too that it was about ten minutes that the mr kaplan it been in the car she testified that she never interfered with the arrest that mr kaplan was in the car and she went over to the car to ask him what she should do through the open window and when they said step away from the car she immediately stepped away from the car so we submit that there is  material fact which is what the district court found and that this case should be set for trial by a fact finder instead of summary judgment which is what the district court found  when he just said that the deputy tried to block her way the evidence that the motion for summary judgment demonstrated that ms kelsey actually testified that she was standing near the pool doors she heard someone talking in a bad way to her daughter and that she started to walk to see what was being said to her daughter and that mr ernst then grabbed her arm  and she turned to him and said what and she said i'm going to go talk to my doctor and then turned away and he did not say you're under arrest he did not say anything to that a fact  check also testified it by deposition that she did not feel threatened by my client that she was just standing there talking to her my client's daughter this was eight o'clock in the evening swimming pool incident and the court properly found that there were disputes as to material fact and that a fact finder would have to find  what happened further deputy or testified that he took her to the ground striken her shoulder first taking her full off her feet in her swimwear and put her shoulder first on the ground and there is no dispute that he in fact broke her shoulder and then they handcuffed her behind her back so tightly that  while she was screaming in pain because her shoulder was broken put her in the back of a police car and drove her from why more to the gage county sheriff's department where the jail is and when she got to the gage county sheriff's department while she continued to scream and cry in pain they asked her what size she needed to wear because they were going to put her in the jail and she said i can't change my clothes because you've broken my arm these are all the officer approached her and gripped her arm he was effecting in a rest there is a dispute about that he never told her he was affecting her rest nor had she done anything that in her mind would cause him to be affecting an arrest at that time now he says he was told to arrest her by the police chief police chief thank you kirk kirk patrick perk patrick actually in his report said he had called off deputy ernst and well because he'd already put mr castle and in his car and so he had no further need of them to be there so when said he was told to arrest her because of her earlier improper conduct whatever with and or the police car that's that there's a dispute in the record as to that so there are are all kinds of factual disputes in this case now we we would have likely appealed on some of the other of summary judgment but at this point we cannot appeal those issues much like the defendant ernst cannot appeal this issue because it's fact it's factual issues this is not a subject of an interlocutory appeal at all but in any event we do believe that the district court made the right decision as a kid came to mr  t i i don't know that it is actually in the record how large of a man mr ernst was it is in fact there is a picture and there was about the technique used and for in terms of expert testimony showing it was a reasonable technique to use or something of that even addressed the technique used i would submit that the bear hug where you take someone down and put them shoulder first into the ground is not a recognised p tactic for taking someone down it is not a pressure point tatic was it or was there a counter affidavit to that effect and there was no counter affidavit to that effect because i don't believe the initial affidavit really even addressed the technique used it was more that it was proper for him to arrest her because she was creating a commotion of some kind no your honor what i'm saying is they appealed from the the denial of their motion for summary judgment and if i if i stated that wrong that's correct i mean this is not the judge saying that we win the judge saying that we get a trial right i don't seem to be saying that this is not even a proper interlocutory appeal but if we take the facts in the light most favorable to the then there's a purely legal issue presented as to whether those facts would justify an objective a reasonable officer in seizing her and using certain amount of force and whether it's clearly established that such force was forbid those we have those appeals all the time and for them a case so we what is what if it's undisputed that she was not complying with his command to stop that and was in the entitle the use at least some force to seize her and then were just on t undisputed he said she had been told to stop but kept walking instead and he's saying those are the facts in the light most favorable to her well we'll check that but that was her trying to just assume for a minute that those are the facts and says what judge gerard said they were not ruled in your favor correct though clearly established law that says it's impermeable to take down a person in that showing that that there is any i mean certainly i agree that you cited several cases where we've held if a person is non compliant then officers can use some force to bring them into compliance and sometimes that involves taking the person to the ground and in order to defeat qualified immunity i think you have to show that it's clearly established that what he did here was a violation of the fourth amendment so i'm just asking if you want to address that or haven't you well one of the one of the issues that he relied upon w there is case law on one of the cases that they cited that says you are required as an officer of the law to at least give them a command to stop and in our circumstances  says he says it's clearly it's clearly established i believe that did not tell give her a command to stop but he was relying on the other officers to have previously told her that she was going to be arrested so you know i think as a matter of it that mr and scouts will has not offered up he's just said that there's all kinds of facts here that they have that ms kelsey could not have possibly been where she says she was and so we submit that the district court made the proper decision in this case and it should go through trial with respect to all of the issues rebuttal not that this is particularly employed or important but mr catlin was convicted of domestic violence to a domestic partner so it's in the record i would tell you that  clearly knew the officer told her to come back she admitted that and she didn't comply with that directive and i would also tell you that the to take and you can technique used to take her down and i was testified to by former