down from this it's like just before one am a group of males with a stick are trying to break into a restaurant the officers arrive on the scene with their lights that hasn't been disputed the lights can be seen on the video in the plain of also testified to that and her fifty six point one and as they roll up onto the scene they see according to their declarations also according to the video also according to her own testimony that she sees them and i can when i step back for a nd and tell you what's happened before so from the officers perspective they show up and they see these this group take note of them and turn and start to flee at the same time they see the woman holding a stick matching quite the description of the nine hundred and eleven call the suspects so to thing so st of all the nine hundred and eleven call is not a noise complaint it's about a fairly violent belligerent potentially group of now run into a building they don't know if it's their building someone else's building their innocent people inside they run into the building where they rushing the call was that there were three men with a stick trying to break into a restaurant banging on the glass that's that's what you didn't say before and i was i ask you somewhere i thought this was for a group of men who were attempting to burglarize this break into it with the words of the dispatch that they got i think that they are trying to break into the glass trying to break into this and using a stick using a stick and if you see the surveillance video you can see a minute earlier maybe two minutes earlier these men appear on the screen thirty three and a dispatcher that's right that's what the nine hundred and eleven call reported and so it's rodriguez right that's it yes the dispatch that goes to the officers so that's what the officers know that's what frames our analysis of qualified immunity so these officers are looking and like i said it's not a noise complaint they're looking for potentially serious and the range from what they could be they don't know right so they're they're looking for a group of men with a stick of just trying to break into a restaurant the people who called were frightened i think they might have mentioned that they thought the people were drunk and they've gone run into this building dark inside it's kind of the middle of night they don't know where they're going they don't know if they could arm themselves they don't know if they could hurt some bystanders inside and this woman has pivoted her body into the way of the door whether she says it was reflexive or not and she's got stick in her hand and as you can see if you slow down the shitter and you can see in the video excuse me i'm sorry that the son takes the stick the son has a stake in the video to stick size a stick he hits  toy with it his that's out from front of the building and then he just sort of standing around with the stick the mother comes down she takes the stick from him and so we know it's the stick that came from that man and but that doesn't matter the officers don't know that what the officers know is they see a woman holding a stick in the doorway pivots as the police start to give chase and she reflects what are the officers perspective is she turned and left stick it i level to officer rodriguez and he shoves her out of the way hard onto the ground and keeps running in an reasonable yes your honor i think that at a minimum it wasn't clearly established that an officer could not push aside a woman holding a stick in a choke point in hot pursuit who seems to be affiliated with the men at least well i'll say it's not relevant to the legal analysis judged there is opinions about the merits of qualified immunity as a doctrine and i don't think that this case moves the meter at all so this is not i think maybe it sort of what the officers coming to the scene perceive or a reasonable officer in the shoes of our officers knowing what they know perceive could perceive and could reasonably believe would be a lawful act or the real question is whether no reasonable officer could think under the circumstances that pushing her out of the way wouldn't be lawful now if she subjectively believe that she didn't do it on purpose or she was reflexive or what i mean that that all goes to some question about her criminal conduct or whether or not but it does not go to whether these officers have qualified immunity or whether from their perspective they're only subtly different but they are different one goes to the excessive force which i think is exactly as you stated the issue  the issue is entirely whether a reasonable officer would have thought it was necessary under the circumstances to move her out of the way and that the degree of force that he used was appropriate to do that  her subjective intent is relevant to the arrest claim at least to the extent that again the question is from the standpoint of the reasonable officer was there reason to believe that she was intentionally instructing governmental administration that's a very it's a very subtle difference because again i think you're right that whether she actually intended to obstruct is is not the issue that would be the issue in a criminal case but it is a slightly different issue at least whether they just needed to move her whether she was there for good reasons or bad or neutral is a slightly different question than whether they had reasonable cause to believe that she should be a sahm over my time answer thank you and to answer and i think that's completely correct like i can move to the probable cause for the false arrest there is arguable probable cause here because well if there were absolutely garcia this court basically said that the officers can't into it what the and what the mens rea of the person is so we have to look at her her conduct from an objective perspective and what we're seeing here is a woman who's clearly if she's not a bystander right she's speaking with these men she pivots into the doorway whether she now says it's not intentional there's a reasonable officer could believe that was intentional her sort of you can see her conduct is consistent with her own testimony later that she saw the officers want to get her kid out of the way right out and up stairs so she was in fact obstructing an officer could see this obstruction and with the stick going up on her in the officers face while she may now say that wasn't intentional or reasonable officer or at least some reason the officer could come into the scene have at least arguable probable cause to believe that that was all intentional obstruction of governmental administration or our purposes or are we to assume  to the decision to make the arrest because it's not clear to me who did make that decision what in actual fact happened but for our purposes on this appeal do we we're judging on the assumption the officers are actually communicating and pointing at her so in the moments after so it's hard to imagine that any reasonable juror could even create have a question about whether or not those officers were involved or communicated their they're the right defendants whether they are rightfully made defendants they're the people that we do the to the extent that they are the defendants in this case and their involvement in her arrest decision they also have the probable cause from personal good morning may it please the court lissa green stark appearing for a pelley and as there are of course two overarching issues here whether there was qualified immunity for the excessive force used and also qualified immunity for the false arrest i will turn to the excessive force st and it's our position that defendants entire framing of this issue ignores the central question it is not whether defendant rodriguez may have had the right to move miss clicks to a site in some manner in order to pursue her son but whether the man or he should know that he did it he should not have been running it not that he should not have been running it's if you watch the video there it's the moment to watch the video it's the moment where he places his hand on her head and she's fifty one on athletic fifty year old woman proximately two second five seconds right person rushing into this building it's not a right yes well they pull up i think there may have been a little bit more than five seconds where you can see the lights reflecting on that awning basically at the moment and at the moment when he's moving her right he runs towards the door and at least as i observed on the video he's sort of almost running as if to go around her and she turns into him in such a way that i take it when you're when you say this is how we should frame the issue is the degree of force right at that moment it sounds like you're conceding that he had some sort of right where it was reasonable for him to decide that he needed to move out of the way yes now how do you suggest that he should pretend where the jury how do you argue exactly that he should have behaved he shouldn't he should not have well i think that there these are trained officers and they are trained in fact you see a different officer officer says speedy is move a different individual who is blocking the door and you see him he takes him in a controlled hold and he moves into the side when you know that that was sometime later that's know who's arrested or is that a different he's actually let go apparently it he's one of the thirty two people go in and one is standing by the door correct i don't believe he is apparently one of the three who was banging on the store because there is an id procedure done later by the owner of the restaurant and that individual who was moved aside not arrested not charged with though he's arguably also blocking this entrance when the police officers st approach as is the daughter both of them are move aside they are not arrested they are not injured and they were dealt with reasonably and the question is whether this maneuver that he that rodriguez engages in it's not even a real maneuver what he does is it and you almost can see it in the video he doesn't really look threatened he stops the stick very easily then he takes his hand and he with untempered force throws her to the ground causing her face to smash on the ground and the question is was that a reasonable response she's sticking his face in that rodriguez his face right i think she but i think there's a reasonable viewing of the video that she turned towards him and that a jury could credit that she's not wielding this stick at him oh sure but that's just not the issue the issue is he's got a stick in his face but he easily and you can watch him in the video he grabbed he said he was running at high speed so i'm going to write yes but he does he controls the stick and he seems not threatened at this objective police officers valuation of trying to get into that apartment building just briefly the restaurant owner said that there were three men banging on the window it does eventually go over as a code for burglary but i don't believe there's any allegation by that complainant or that ever answer c of to organise i believe that it's the code that's put over by the dispatcher so i'm not saying that that the police didn't hear that but the information that was provided from the actual complainant that appears to have got over dispatch an officer on drug is understands this to be a burglary to which he is responding is there any doubt about that or any dispute about that it he is not all likelihood would have heard that but we don't know we actually don't know what information he actually heard come over the routinely when police officers give testimony in these sorts of cases the information that they say that they heard is not always exactly what came over dispatch and we don't know what was in his mind we don't have that information we have a document with information that went that information but the question again about the stick this is not necessarily a self defense case you say he wasn't threatened he was bothered because she was in the way if  in the way with a stick why isn't then he isn't you're not disagreeing that he's entitled to move her out of the way but well that i'm not disagreeing but i do think there's a range of ways that he could respond to it and that there is obviously a reasonable way to move somebody and there has to also be an i only wore away your trying to get in you're not and you're also not disputing that it was appropriate for the officers to enter the building and chase the suspects right i don't think that we can on this record so so he it's not just a question of you know this is what a demonstrator and she is of structuring a doorway and it's appropriate to get her to not block that doorway well for whatever purpose this is a quote case where the officer is trying to get into the door then they wouldn't know what apartment he went into and they wouldn't have any ability to pursue them into someone's apartment so there's some urgency to get in the door in time to stop and at least question these suspects yes you would agree with that so in that urgency in that one second you're saying that it was it was unreasonable for the officer to use enough force to just push aside as opposed to what was happening with the other officer in the other gentleman where the problem was just ok where removing him for whatever reason possibly not to get him out of the way but possibly because he was still a suspect point or what happened with the person who may or may not be in the school is closed as daughter who is also kind of in the doorway but it's very clear from the video that reason an officer could get past her at that moment but this is like it almost looks like a kind of football player when she turns around he's blocking him and she's blocking him intentionally or otherwise in the exact that he's trying to to use to get into the door and in fact which is not was not being blocked before she turned and so you're saying we should be calibrating should he have touched her head the way that he pushed her was in a dangerous extremely untempered force push to the head which alone is is likely to is more likely to result in serious injury the manner that he did it was on reasonable it was odd reasonable for a trained police officer who was trained in dealing with these situations trained to record of any sort as to specific  example like the choke hold situation that there's something in the patrol manual or something and some expert police witness who says here's how you move someone out of the way when you're rushing into a building and they're blocking you so what is the trick what evidence is there about the training but i think that from our familiarity with training materials generally again that's because of the posture of this case and when summary judgment was moved for we have not had expert discovery we have not had an opportunity to have a police completed and that we thought this was not right for summary judgment and the court ruled that it was right for summary judgment so we we do believe that issue is preserved having objected to the to the city being allowed to move for summary judgment is it a part of your argument that if we agree that on this record the district court erred that we should remain and to allow further discovery or something like and see that in the brief as a suggestion i thought it was a sort of binary decision where we've got a record and there's either qualified immunity on that record or there is not well there was some citations to the fact that because discovery had not been done that the standard for summary judgment the standard for proof would be higher on the part of the move vince but again i do think that there is a real question as to this method that he dealt with this woman and i think it goes to real questions to question the credibility of those affidavits i do think st of all della santos representation that when he stops and speaks to him it's clicks or she's lying on the floor that his intention there or what he did was ask her if she was ok i think is just belied by the video he appears to be yelling at her and telling her to stay down or something to that effect we don't know again exactly what does that sound know but he looks at her looks down at her maybe says something to her in whatever tone of voice he says it and then having said it he turns and runs and minimum we don't know what he said but he the only person who says what he said is him the did miss blackstone say in that she was she was not offered aid in that moment or not offered by the police i think there's also say that he this is the nd officer came by and yelled at me to stay down that is not testimony that she no ok that's your suggestion of what we should infer from the video from the way his mouth is moving that that's probably what he was saying from his gestures and that is to me his characterization of what he said does not seem consistent with the way he's just wrong and his posture in the video i even bothered to stop and tell her to stay down she's down if he's just interested in chasing the suspects he has a clear path he could change the suspects why would he stop and talk to her at all if not to say you know what's happening here is the u k or something like that why is that i put we don't know again because that testimony has not been taken and we haven't had an months if i may just on two points st heard a lot of talk about how the officer should have more perfectly calibrated the amount of force he used that's exactly what the qualified immunity to doctrine sort of protects against has this we have time for sober reflection here to think about how a little bit less force might have also been north but in the heat of the moment in a hot pursuit the officer has the benefit of that and as your office honors  of this i mean the stick in his face is changes the scenario a little bit in terms of how much force he's awful in in the realm of objectivism is he could use which is why i don't even think we need to get to the nd prong qualified immunity on the but t and then i'd like to turn next if i may to the complaints about their being in an adequate opportunity for discovery i mean there was a case management conference there was a warner given by the magistrate judge judge man that said discovery the plaintiff didn't notice depositions of the officers that was a strategic decisions perhaps they thought that the thing would this things would change because of the motion to dismiss but  know my understanding is that the only time any request came from or discovery was in response to the summary judgment motion they said i'd like more time and the city opposed said you an opportunity the court denied it and then