contention is that the incident described by the officers and described by marcus lee is the same incident both officers brahim and ryder testified almost uniformly to a continuing series of events that exclude any reference to marcus lee who was on the scene from start to finish officers write him an officer write him an officer write or both describe what they were doing before they encounter mr hedge have they described the run up to that incident and based on the record before the court on the testimony of officer right team officer ryder and marcus lee there is no timing that would provide for two separate factual transaction mr script on assuming that we as we must in this current procedural posture accept the evidence in record that supports your client and draw inferences in his favor we nonetheless have testimony of marcus lee that the officers sought to arrest mr hedge path and asked him grabbed his right hand and asked him for his left hand and he effort to sly on mr hedgecock but just to get him under control to arrest him if we assume that factual scenario that the one of the two is not material to that is it in e standing and the the at most the resistance that he offered was not giving his right arm once officer write him already had on his left arm and i think that would be distinguishable from an instance like and scott for example where the plaintiff tried to escape from the see me the defendant tried to escape from the vehicle or in other cases where that there was opposition was sort of active and oppositional where they pull away what about i mean that's why i was asking about for example over whether where you have a woman dancing and listening to her ear buds in the jefferson memorial and sort of you know while she's there there's not any violence or t question it seems to me and here's how i see it as sort of being a different question one question is the maneuver that she used by the police to take down the suspects your client and given the circumstances this judge says there's some process and suggests the maneuver is permissible given the circumstances not to see your point and i'm just going to distinguish the two things the second question is whether or smashing his head into the wall i'll just use that as shorthand was an accident or intentional and on that your argument i suppose is that there's at least enough evidence to show that it might have been intentional to get to the jury the district court concluded that it was accidental and on then the only real evidence we have you to tell me how we can overcome that because lisa says his his observation of the event is that he does not and i'm paraphrasing here he did not think the officer was intentionally smashing your client's head into the wall that it was that it was not it was them in essence an accident how do we deal with that because said that to me that's a critical piece of this was it intentional or was it an accident was intentional or there's enough evidence that it was intentional but he should get to the jury if it's there's evidence the only evidence is that it's an accident then you don't i would argue agree that there is some testimony from mr lee that as far as i'm is when i believe he says that you believe that it was intentional for the officer to take him to the ground but not intentional to take him into the window and i guess my response to that would be based on the nature of the injury i think a reasonable juror could in her if there was more to it than that and i think that even though mr b s testimony provides a significant amount of our case because mr nisbet doesn't remember the incident in this sense this is a doctor's action should be viewed objectively and i don't think that mr leeds interpretation of the officers subjective intent is necessarily relevant to the analysis here and we did cite the case santos out of the ninth circuit that i'm is very analogous to this situation in which the core of the ninth circuit held back on the nature of where where defendant doesn't again going back to the severity of the injury i mean on the one instance we have officers working testifying that he merely touched hedgepeth mr hedge by his biceps and that made him fall over and then that caused such an interest i think you take what the  him to taking him face first through the window great again i would go back again to the nature and the severity of the injury that even the reason was there and did you notice that as a result evidence that the physical consequences of the conduct could only have come about if the officer intended to hurt i believe that the some of the expert reports speak to that speak to that issue dr scheiner or dr scheiner report and others i believe they would opine that at least it's a reasonable probability that the force would have been work of that it would have been enough or worse required that would have the evidence and tend intent intent to hurt as opposed to intent to take down because for these purposes i think the district court allowed that district gave you the benefit of the doubt on that and said no there was the maneuver used then the question becomes whether there's anything in the record sufficient to get past summary judgment to support the proposition that if you allow that the man testimony that he that he just didn't perceive the event he didn't perceive the officers in ten in that manner again i think a reasonable juror could could infer based on officer walking testimony based on other facts on the record for example the witness statements that it is relatively undisputed that were there were several witness statements that were taken i'm never never produced i would never preserve by the metropolitan police department officers or human right or both categorize the event as an as not a use of force incident which would have triggered a series  of investigations and things like that but i take all that we has no incentive to testify in favor of the officers in that circumstance right whereas the officers obviously do about what happened that we should be somewhat skeptical that's at the summary judgment stage of officers one sided testimony but here it's somewhat analogous to that because your client can't testify about the events but we have this observer who says his perception of it is that it was an intentional and he did correct me if i'm wrong has no real incentive to testify traver of the officers for any particular reason he's just saying what i'm in that respect there may have been other witnesses and there was testimony from i'm tired davidson where the people were screaming police brutality and there were seven there was testimony from both charley davis and webb and marcus lee that they saw the officers taking witness statements from two african american women on the scene which just vanished in the same way the original of the so called rip phantom african american male that mr edge press supposedly punched all the officers own model books or said there's some kind of book they're supposed to be in on these issues and essentially i'm had no information that maybe the witness statements got stuck in a file cabinet drawer somewhere or something to that effect you know if you take all of these little things together i think that a reasonable fact finder could make some  of intent here even even more so than what marcus lee gives us and the incident you know why is officer rock eem asserting that the only force he used was touching his bicep by the fingerprint by the fingerprint why was there such a shifting rationale for the only looking at what what what evidence we do have as to what the force was used comparing that to the injury that the plaintiff sustained and then drawing inferences based on that i find i know our cases you're correct that we have prior cases that talk about on the flipside force you must be reasonable and mention it to her maybe even three of them that mentioned it was quite similar situations where there's arrest somebody he's you know taken down  peg but you know another factor supporting that the force used was reasonable was that the injuries very were very slight and i wondered about that logic i mean if the force used to you know to do an individual is the exact same force that caused slight injury in those other instances but here it's a guy there's an awkward turn and there's at a wall right there with piece sharp montanans does the fact that he's more seriously injured actually is it actually proved him that the force used was on his own i think so i mean i think it logically follows that the a harsher the force so to speak the more likely there is the seriousness of the injury so if you're in a situation where the officers put someone's hand behind their back and they do it a little bit rough you know or twisted a little more than they probably should you know that still can fall within reason that good morning i'm a please the court for sure fully on behalf of officers were he man ryder i'll start with the excessive force claim and it is true that the only evidence that would have possibly supported this claim  the plaintiff would be the testimony of mr lee even mr levy was clear in his testimony that the force used was designed and appeared based on his observation of it to secure mr ha and i don't think the question really is subjectively what was in the officer's mind but what appeared reasonably objective least even as he viewed the encounter and i think that is very well related and i don't think that's right because his head hit the hip of the wall side of the well the building the question of whether that was his ok or not ok is the wrong word to live or not depends on whether that was an accident or whether that was intentional and that in turn correct me if i'm wrong depends on whether the officer was trying him because he was angry or or responded to push his head into the wall or whether he was merely trying to take him down and it was an accident that he slept or awkwardly fell into the wall so it all depends on whether the officers or used the word intent was to take them down for accident and intentional the same thing would have happened namely he's pushed to the ground falls out of the wall it depends what he wanted but it but it is still on the objective test i recognize the distinction your honor is made and i do agree with that for example a gratuitous act of violence that serves no governmental interest yes would be a violation of the fourth amendment but that is not lee's testimony lee is the only one who even supports the notion that this was an intentional they now suppose but that would mean any time the plaintiff gets killed or gets injured so severely that he or she can't remember what happened that the officer gets summary judgment in excessive force coin which strikes me as you can't be right not why when the rule sensible rule in these circumstances be un don't put an injury like that and it depends on whether it was an accident as a result of otherwise permissible facts of each case are going to be different and so the court might want to look at the perfect were facts differently again that's not this particular case not only do we have this witness it's the defendant's position the reason mr edge path and you're calling think it's because he was severely intoxicated if you will in a fourteen hour well then that can't be right it can't be you asked for you to get it so you're drunk and you can't remember and therefore the police have a free shot what if i understood the premise of your question your honor is unfair to play that  own at some of that action now you are i'm just talking about this particular narrow question which doesn't even apply here we have as in any case we're going to have additional fa situation of the individuals that this would happen and you have to recognize that officers act as the supreme court has recognized under difficult times i think this is different and i think that's a different question than what you just said really goes to whether the takedown itself was so dangerous that it should have been attempted in that particular spot and i think you have a good case on that as to the take down my further point is whether the smashing into the window  person i'm not sure that he really counts as a friendly witness for the i think he is just an acquaintance he's someone who hasn't seen this fellow for a long time and he has a tate's to take him home i if i ran into somebody that i used to work with ten years ago and he were intoxicated and i was you know might hesitate to take that person on into my own custody and take some time they were out to him i didn't think that was warranted the amount of force i didn't think that was warranted the amount of force or to him this looked like something alarming well i think this is the way that and he didn't say i didn't think that he intended his head to crack open but i did think that he was using more force than was warranted under the circumstances well of i didn't think there was more to the amount of force and the fact that he was visually seriously hurt i wanted to make sure that somebody who saw the whole thing court has announced or reviewing excessive force cases that you have to recognize that an officer is acting under tense the court and rapidly evolving circumstances and what that record would mean in this situation is that often it's not going to know in advance of able will say just assume for purposes of argument i'm not saying we necessarily come down one of the other consumer purposes of argument that it was ok to implement the takedown the new for then the question becomes does the injury that resulted therefrom is that of a character that indicates that there was an intent to physically harm mr hedgepeth when he was being subjected to the takedown and you are right on that the argument that opposing counsel is given is if you look at the consequence conceivable in the reason i say that is because it is unpredictable the exact consequence or is all the killer application of force and it may be that particular application of force ninety nine thousand times already about nine hundred ninety nine times out of thousand there's no injury but just by off chance that one time out of thousand of those result in serious injuries that doesn't mean that the use of force was unreasonable or that sufficient evidence to carry that burden i have i mean there are cases here right around the country where a takedown maneuver that i gather is a relatively standard police aide to arrest results in some moderate to serious injury  now we disagree with you the district court was correct as of that there was no evidence supporting this theory that there were two separate transactions all right set aside the assault on public intoxication is the policy on finding someone down town who was intoxicated i think that's a misdemeanor and those people the officers choose can be arrested no your honor the law provides that a person is intoxicated in public there has to be some form of public intervention whether getting the individual home safely taking them to a facility or detoxification center if it's a crime if the person is a danger to self or others i want to see aren't the right was to do something back when you say that then the policy is that they take them to is that the police take them most places or is there i service think call when if you aren't with people who are willing to take you home how does that actually work because i read that that part of d c law that says you know we take them to a shelter of a percent is in the passive voice i wonder who is it that actually does that right now well i think as a practical matter the person probably falls on the officers i mean they're always the ones sort of first on the scene as the officers were here but i did want to say that back on to the excessive force and i didn't necessarily fully develop a qualified immunity argument so even if the worst arguably was on reasonable there is a qualified immunity doctrine of protection you know where there is that easy border between excessive acceptable records that officer looking at this where it's a flaw of the you know the sky case the martin to it is that the further no government interest that's correct but ok i wouldn't assume qualified immunity doesn't help you if the if there's sufficient evidence and query what is sufficient but is sufficient evidence here is that when there are witnesses observing and i realize you have a week or so put that to the side where there aren't with this is observing that's going to again mean that officers generally will get summary judgment even when they intentionally slam someone's head in the wall now now not so i may be a witness in cases without witnesses observant well there will be the test in the office i mean they do have to testify truthfully they're under well usually the jury is the is the body in our system that weighs credibility in a circumstance like that not not the judge reading a paper record right and i'm not i'm not here to advocate some general it will depend on the facts and circumstances of each case and the facts and circumstances here don't give rise to the concern that we submit because we do have that that's the money of lee and it is the planet that has the burden of proof and there's going to be addressing it they didn't ask for any particular relief for the district or at least it was not preserved at all so just circling back their fences they can rise to reason for rast you said the assault on we're just because we're not focusing on the call for humanity doesn't mean that we don't understand that that is an extremely important part of the analysis we're just trying to go step by step and the i'm trying to understand whether there is in fact that anyone who tried to intervene was the officers or as i said public intervention is required on some of these intoxicated the public so that's a threat to any person might try to intervene through a system he's a threat to passers by there's a lot of people around even assuming that been pushed that's all blackmail you can see how that situation might develop with a lot of people around this thread that's being very belligerent when they're scared the screaming there is there's reference to screaming and references the incredible hulk and i'm just wondering was this was an undisputed that the screaming occurred independently of screening in response to the efforts of the officer to put handcuffs on we do think it's not genuinely disputed that that was the case doesn't capture the entire incident grandest it does corroborate the fact that that he was saying we do think that it shows that he was swaying back and forth and of course as i said i mean the video doesn't capture the entire incident and there's no dispute even you know forty  i could just make a couple points on the issue of public intoxication a few things it is very much in dispute whether mr hedge was virtually belligerent or was screaming up until the point that he was told he was being placed under arrest marcus lee has the buys in his deposition that he did not start screaming and tell officer right he said i'm going to put you under arrest and he started screaming only the only thing that mar testified and screaming was things to the effect of no i didn't do anything there's no kind of polygynous in the interaction in the run up to the decision to arrest mr has had in fact mr we characterize it as mr has  president wasn't being coherent he wasn't answering their questions and at the point where they told him we've decided that we're going to arrest you that's where i remember fairly clearly him starting to yell saying no and that's that's  marcus least has the money so the screening doesn't actually what we have before the decision to make to arrest mr hedge that is essentially him not answering questions we have a video of him in our interpretation of the video as well as mr lee's interpretation of it is that he's not sway i'm he's not a danger to himself the most heavily relied on fact to assert that mr hedge that was a danger to himself was this throwaway you know statement by mr lead in which he said he could be hard to handle now i think people pushing the officers believed that he pushed someone and then we serve as he's hard to handle and then he's not being cooperative and obviously the officers observed him and decided that he  punches someone beats beats of the smithereens ball search you feel bad about that too like i didn't do their job if they don't arrest them that's why it's hard to be a police officer and make make a decision like this whether to arrest them separate from the force question but on the arrest question you know when you put the qualified immunity thing on it and you're thinking about the officers are there to try to protect him and protect the surrounding people from it's a tough it's a tough job dealing with people who kind of fourteen drinks them and you're i completely agree with your honor to the extent that you're relying on the fact that you asserted which i think are facts that are in the defendant's life i'm going to the facts most favorable to the plaintiff in this instance show only that the officers witnessed hedgepeth maybe punch or push marcus lee they approach marcus lee immediately told the officer hey we know each other it's not what you think at that point there's no there's no issue in terms of any physical confrontation mean if we're taking marcus lee's testimony as to what mr hedge best behavior was in the run up to the decision to arrest which i think the court has to do with this stage it's not it's not this grand things that you pelleas that maybe he's screaming cursing this and that whole takedown because here at the split second he looked down to take a picture of mr hedgepeth license that he produced he missed the whole thing so there is some cooperation it's more of a failure to answer questions the yelling in the belligerence doesn't come until after the decision to arrest has been made and i don't know what is out or what's your best site for that frantic when the yelling starts because the officers are invoking his yelling as part of the pollutants that they believe supports and harassed for public intoxication and i take your position to be that doesn't directly doesn't support that or at least a reason turkey can find otherwise and is that mr lee's testimony i think is very much a fact in dispute as to when the yelling started just touched him you know on his biceps and that he fell over as a result of that i think the lack of evidence the lack of the note the missing notes the barrier to ted the better preserve the witness statements the fact that they designated this as a non use of force incident and there was no further or the level of force the officer working used in order to subdue again a suspect who essentially was just refusing to give one arm to him and not pulling away that wasn't it was not actively opposing the officer wasn't trying to we wasn't trying to sometimes when we're observing someone who is trying to take someone down and accidentally hit star head and someone is really trying to push someone's head into a wall those two things based on our spirits and we observe can be distinguished and  as evidence in your favor oh yeah and then it turns out then it's somebody observations can be probative right and we are and we would argue we're at it where the disadvantage in the sense that you know we have a right if he doesn't remember the incident now that always would argue that because of his level of intoxication we would argue that it's because  nature of is his head injury that you know sort of different kind of retroactive amnesia as to the incident and i think that goes again to the court's point about if someone is shot and there's no witnesses you know does that mean that every officer can get away with that summary judgment in every case that comes before the court if the plaintiff doesn't remember all right thank you both counsel of the case is submit