good morning may it please the court helpful my name is lorna dragon and i'm here on behalf of appellant deputy sheriff martin mark wor and i intend to keep two minutes for rebuttal watch the clock in the qualified immunity inquiry before the court today is whether every reasonable jail detention deputy who faced the specific facts that deputy marquardt face on august seventh of twenty thirteen would have known that under clearly established law he could not use force to obtain mr fletcher compliance the burden is on mr fletcher to come forward with some clearly as suspects some supreme court or some ninth circuit law that clearly establishes that he could not use for or isn't doing anything and so taking the the facts in the light most favorable to mr fletcher and a large portion of the activity is off the screen you can't see it on  and if you look at the deposition transcript that deputy marquardt submitted as part of his summary judgment motion he says specifically did deputy mark ort at some point tell you to turn  face the wall before you went to the ground you're talking about is your fletcher's testimony mr fletcher's deposition he said did i what were you at some point turned to face the wall i don't remember you don't remember that no so then he goes on to say so there was no instructions to face the wall that you recall now and did he attempt to face you towards the wall that you recall answered no recall i think that's in line with the prior questions did you remember that he says no and his lack of remembrance does not create a disputed fact deputy mark orts declaration or affidavit deputy losses affidavit the police expert's affidavit none of that information was disputed by mr fletcher i thought i thought the second deputy didn't arrive until he was already on the floor your honor that's correct here rive just as deputy marquardt was getting the second he had he saw him deliver the strike and then saw him get the other hand in the handcuffs but he was not there for this interaction in the cell i have a question about our one twenty four this is a i think a response to internal grievance that was prepared counsel and it says mr fletcher i reviewed the incident between you and deputy marker in the videos i watched as deputy mark karr gives you lawful orders to turn and face the wall by pointing in that direction my first question is i think we don't have any audio is that right correct ok and  then my second question as i watch the two videos that i had available and i cannot see anybody pointing in a direction of the wall is there a video i'm missing your honor i don't think you're missing a video well i don't know how to explain this statement can you i would explain it looking out the declaration of the police safety expert he said that he looked at the he was able to look at the video frame by frame and he was able to distinguish that the video cooperated to what deputy mark ort stated in his declaration but this person answered by staff member it says i is that's not your that's not the expert is it no he's not and this says i watch as deputy mark karr gives you orders to turn and face the wall by pointing in that direction so i'm at a loss so perhaps deputy ivy also looked at the video frame by frame if you slow it down enough you can what you can actually see it frame by frame have you done that your hon have not ok well i forgot it's right and i give you fair opportunity to respond because i watched it everywhere i knew to watch it and i could not see that action so thank you for that but your honor i still don't think that makes it a disputed fact because you have mr fletcher saying he doesn't remember deputy mark or does remember exactly what happened and i don't think a lack of remembrance creates a disputed fact that deny summary judgment the bird we came forward with dec affidavits the video shows a police expert mr fletcher came forward with nothing fletcher and how could we say that he was resisting when he claims that he was not well actually mr fletcher claims that he doesn't remember now he goes if you have to read the his whole deposition context he says i was doing nothing i didn't provoke him i was just standing there he was angry at me from some prior encounter he jumped on me now you can you can parse the words but it's very clear what the import of his testimony is well i think you also have to remember that that deposition was put into evidence by martin marquardt wasn't put into evidence by mr fletcher ok but had forgive me and we conclude from that well i i would conclude that when we put it forward as evidence we didn't think there was anything in the deposition that created a disputed fact or an except that i but i don't know the what answer you've got to judge i court's affidavit has not been disputed deputy loss affidavit has not been disputed the jail expert's affidavit has not been disputed so so it seems that mr fletcher is asking us to totally ignore everything that was put into the record and i ask you about the other folks other than the two men who were in the jail cell at the time how if you seem to be relying on that testimony and they weren't there at the critical moment so what is how does that help us with our inquiry well i think deputy lowish talks about the circumstances that good morning your honor is and may please the court sara peterson on behalf of this court should reject mark white's appeal first because the court lacks jurisdiction to entertain it as marquard has argued it and second because even if the court decides to reach the merits the record evidence would support a finding that violated plotters clearly established constitutional rights turning to the jurisdictional issue first the district court here ruled that there were disputed issues of material fact presented in the record and this court has held in the ng vs cooley case the george vs morris case and most recently in the foster vs city of case that was the subject of our twenty eight a letter that the court lacks jurisdiction to entertain the wall is undisputed because all mr fletcher says is i don't recall that was your response to that you're on our first response is that that is that those are challenges to the district court's ruling that jurisdiction to entertain what the supreme court has called pure questions of law and this is in the johnson versus jones case that is cited in the foster case and the george case in that case the supreme court distinguished pure questions of law which are fact we can address those legal questions based on the undisputed facts in the record yes your honor so the question here they are on is whether mr mark wired's facts are undisputed that's what the claim is from opposing counsel and the district court below rejected the argument that mr marquard facts were on disputed where i asked you know is on the one hand the deputy has his version of what was said and on the other hand there's a witness opposing counsel's argument is that he says your client has yes or no he doesn't remember and so does that create a genuine issue of material fact her position is that it is not we our position is that on the  merits it certainly does and the director just record correctly ruled that it does create a genuine issue of fact and our position is that that determination is unrevealed will so that you just tell us why you think that is please you're telling us the conclusions by could you tell us why you think that is why is she wrong in saying that this is undisputed there is there is substantial testimony from mr fletcher contesting marquardt assertion that there was an instruction to face the wall so if this court turns to to a five in addition to to the testimony that the court covered with opposing counsel there's a question did he give you any instructions when you went into the cell answer no i didn't hear no instruction i know he grabbed my shoulder tell me to go into the cell asked me why i had an attitude and the next thing i know i was on the ground so that's a direct that's fletcher directly testifying that there was no instruction he answered no to the question was there an instruction so it's not the testimony is not that he doesn't remember whether there's an instruction it's that is a fair reading that his testimony is no i didn't hear no instruction i mean i understand the mark or it's position to be he he could he said to face the wall that's not in two entirely inconsistent with saying fletcher saying i didn't hear nothing at a similar issue was taken up actually in the foster case the question was whether the plaintiff's testimony that he didn't see a gun was sufficient to create a deed dispute a fact with the officer's testimony that he that he had that the plaintiff had a gun and the court said that that's a disputed issue of covers all of fletcher's testimony as to what happened he asked a catchall question anything it was said by you or him referring to marquard answer no i was just yelling for help telling him i was going to sue him and he's going to lose his job after the fact that what we're talking about which was an instruction to turn to the wall right all of that happens later yes your honor yes your honor but the it's just further testimony that he had to hold opposing counsel everything that was said in the cell and it didn't include an instruction to face the wall i would i would also note that the counsel both in the district court below did not dispute actually conceded that the instruction issue was was disputed so this is at e r s seventy six every respect it's a classic he said he said situation of opposing narratives that are incapable of resolution so and marquard presented other than the instruction issue presented the same arguments that he presents to this court the district court did not adopt any of those arguments said that these narratives are incapable of resolution and so i think the only reasonable reading of the district court's order is that it sounded to speed a fact on all of the  is i can i can read it for the court the sentence is in his affidavit marquard states that he instructed fletcher to turn and face the walk the cell wall when he decided to secure fletcher to move him to a hold or cell to cool off case there's no longer de minimus injury test fletcher testified to his injuries which include migraine headaches bruising pain back pain wrist pain chest pain chest contusion and that is also efficient under wilkens vs gatti which is the supreme court case from two thousand and ten and also in line with the facts of the the felix vs mccarthy case out of out of this court in which the court found diminished test no longer applies we think there that we have more than sufficient evidence in the record of fletcher's injuries to go forward to trial on his crime i just quickly asked is it correct there's no audio in just the  your honor the district court did not state what the disputed facts are and did not conduct an analysis of qualified immunity that's a requirement so dept deputy sheriff mark court was left with not knowing what facts the court actually considered disputed and why he was denied qualified immunity and that's why we're here before this honorable court today is to have you look at the undisputed facts in the record and make an analysis of qualified immunity because that's a legal determination for the court to make and under the facts that deputy marquardt face that day he was in jail he had forty inmates milling around he was armed he perceived a threat from mr fletcher gave him instructions so he could handcuff him take him to take him to a holding  he did not comply with those instructions he's in the jail now as to where there are any injuries no there weren't if you examined the affidavit of all the medical professionals yes they reported what mr fletcher said to them but objective lee did they see any injuries the answer is no and they saw him on multiple occasions including right after the incident so when you look at the undisputed facts deputy markhor doesn't title to qualified immunity there is no clearly established law that would have precluded him from using force to control mr fletcher that day thank you for your arguments i think ledgers counsel is on a pro bono program the court appreciates your assistance in the case