which occurred between two and three were captured on video that video was submitted to the district court in response to defendant's motion for summary judgment however what are going to say well you have you have the instance where he slammed against mr ernest vehicle there is no reason for that at  all you also have at a minimum two or three times that he slammed to the ground there certainly no reason for that you also very clearly and one part of that video see the officer picking him up by the handcuffs that there are certainly no reason for that and it's those it's those at a minimum those instances d of force that a reasonable jury could conclude was was unnecessary and that's the concern with the district court opinion is that there is no real effort at all  home that that that's true and that's why you know there's case law out there auditors from for example the on the hanssen versus madison county detention center depicted by the video on the court also went on to say in that case that where reasonable jerks could interpret the video evidence differently sub summary judgment is not appropriate  this case you know just the few instances that i've already mentioned the excessive force getting slammed against the vehicle getting thrown out on the ground approximately three times also being lifted up by the well yes because there is no need to lift him up by the hand counts that in fact there's case law are discussing that that lifting up that rusty by the handcuffs is excessive three times and there is no analysis says the specific parts of that video certain actions depicted in the video and clearly when the video is watched a juror could make the conclusion hey there was a reasonable force used here so that's why you know summary judgment was inappropriate and fact you know it's another reason that district court opinion should be reversed is fifteen the court clearly said in that case that to the extent the facts shown in videos can be interpreted in multiple ways or videos do not show all relevant facts such facts should be viewed in the late most favorable to the not moving party which in this case is the plaintiff that did not happen in this case in any way shape or form so that's certainly one reason that and probably the most important reason why number of photographs both of them booking photographs and photographs taken when he was released from the jail that shows significant injuries to his face and had including injuries the district court opinion on page six said that the extent of plaintiff's injuries is not relevant to the excessive force analysis that is a blatant versus hendrickson which was a united states supreme court case decided and two thousand and fifteen in that case clearly said that considerations such as the following may bear on the reasonable seven of his deposition were which were part of the record your honor his response was i did not a name for the face i do not know if i struck him in the face it's goes to show that very point i specifically asked him and his deposition when you initially went up to the car and you saw mr mr ernest in that vehicle  argue what what would create the basis of the justification for this question being put to the jury that's exactly what i was i was getting to hear out here is that  you have you certainly have the defendant initially saying who's right there i mean there's no question is what and mr earnest he says there's no injuries there's no injuries on his face nothing and then you have all these injuries later that's exactly the type of jury question that has to be answered here especially in light of the video you know this isn't a video were cho at the photographs at that at the end of it showing a distinct lack of ice and the stink swelling in the face and numerous other injuries and you also in the video i think it's some time after the four minute mark you hear him defendant miller hitting mr ernest ok i have another question for you so let's assume hypothetically that what you say is what happened let's assume that even if we assume it where do we how do we how does this indicate that the training by the the county  genesee was insufficient or the other lack of training led to the injuries well you have the that goes to the testimony of defendant miller himself i mean he specifically said the only use of force training he had was in the academy and that was six years prior to the incident that we're having here he also said that in the this six or so years that he worked for the county there was no performance evaluations on those those items are very important especially the training and i see my time as a prophet ish by statement that's ok force being used against you is far has the performance evaluations that's a consistent reminder to these officers as well you're being watched your actions are being watched your actions are being monitored so that you good morning mariners merry mass around on behalf of the county and deputy miller ma'am please the core of the district court was correct in granting deputy miller and the county summary judgment because the minimal use of force here to subdue ernest was not and reasonable and in any event he was protected miller was protected with qualified immunity and the district court went very carefully through the facts in this repeatedly false the district court for failing to elaborate as much as the plaintiff wishes he had on the specific time frame of the video but the district court is not obligated to do that the district how do you how do you reconcile those two things this isn't a case in which the earliest was repeatedly resisting getting back up refusing to allow himself to be handcuffed over the course of the time within which the officer was trying to get him handcuffed and in fact ultimately the officer had to get help from one of the e m t is to get this individual int handcuffs the force used even even if you assume the black guy came from the officer which which i think is sheer speculation it's very clear that the officer testified and the t individuals testified he was trying to use a takedown for c j or get this individual to the ground this individual repeatedly got back up rather than allowing himself to be handcuffed and in fact this is a case in which this court's precedent would have allowed the officer to use a taser which is certainly much more serious potentially than the empty handed strikes he is eventually used in his effort to get handcuffs and this guy so it seems to me when you're talking about the force yes the plaintiff is saying he had scratches to his wrist and he had a concussion according to the hospital records i think it was a mild concussion but regardless there was some injury but then injury came from a back and forth alter cation in which the officer had every right and occasion to try to get this guy into handcuffs so he could be transported to the hospital and then taken into custody for resisting and or  intoxication and so forth that was within the officers right this court's president is very strong that he had the right to use force and given those circumstances which he did and the fact that the individual repeatedly refused to stay on the ground repeatedly refused to put his arms behind his back pulled his arms away he was actively resisting and i think the video shows things that therefore there's a fact question the plaintiff doesn't remember all of the individuals who were there consistently explained that he was resisting and stand his ground wouldn't couldn't stand behind his back they struggled extensively after his initial you know taking a swing at the e m t when they were trying to get him out of the cars that he taken to the hospital given the concern that he had  i don't believe any precedent from this court now boyd or from the u s supreme court that would support a denial of qualified immunity on the part of this potus or was trying to do his job car and we and we don't know whether his statement is true or not we're doing we know that he doesn't remember so that he remembers nothing  from the time well certainly from before the time when the e m t officer and deputy miller tried to rouse him i think there is some uncertainty about his explanation about how the car got there i would agree with that thank you i think that it's important with respect to the claim against the county and of course if the court agrees with my position with respect to miller it doesn't need to go any farther the claim against the county is dismissed and i think the district critz opinion was very strong in my view but but since you ask questions about the county and the training i want to replay address that and i would say the following it's very clear from miller's that he went through the police academy which is a very comprehensive set of training there 's also testimony in the record showing that if you were assigned to taser or if you were allowed to use the o c spray county had an obligation that you have  force training every two years so it's not accurate to suggest the county had no i'm going training and finally there is no precedent from the u s supreme court of this court that i'm aware of that requires more training than that or that requires a specific policy about how you approach and i'm conscious person found in what is an apparent single be a little accident  the idea that miller should have announced himself in some further way or that there should have been training and have pointed seems to me doesn't really make sense because miller came up spoke regularly hey buddy hey buddy you got to wake up so th try to wake him then when he couldn't rouse him call for the e m ask properly so because he was concerned about this individual condition wanted to be sure miller's part and there wasn't any county training that would have suggested different approach at the outset of  there's a lot more that could be steady but i think up reports have been fairly consistent and i'm happy to answer questions but i don't want to take more of the time of the  be brief as well again the president of the circuit is they when we look at an excessive force case we have to consider that to tally of the circumstances and that begins at the very st time a defendant miller encounters mr ernest and to kind of go off of what judge donald was just asking about the the placement of mr ernest if it's very important again to go back or a telephone pole there was no impact damage there is nothing to suggest that there would have been an impact such that mr ernest hit his head at the steering wheel but even if that is a question that is a question of fact there has to be resolved by the jury and not the district court and again the question of how do we get these injuries that is left to a jury and for the district court to say that you came and consider the extent of injuries excessive force case is just patently wrong for the reasons that we previously set forth because he's injuries do show that something occurred and is far as these empty hands strikes it's important to know that when i followed up with that mr miller's deposition which is part of the record it was very clear that these were hunches ok they were just slaps i asked them was your fist balled up and he said yes and again that goes and the question of whether such actions were reasonable given what the video shows the video does not show a wildly d out of control  mr earnest it doesn't is far as you know not giving hands or giving hands the video is unclear and so in a video sent clear the president d says you let the jury determine that but a jury can also easily see in that that you have you know an officer on him and a very large jihad jihad on him such that that thirty four thousand five hundred pounds of human being on your and your back may not be able to let you release your hands and there's parts of the video that i believe says i can't i can't and so we need consider all of that that's a tally of the circumstances and the fact that there's video evidence that certainly supports a question of pakistan reasonable