fifty six point one is not decisive to do otherwise a hope in court noted would be to her war parties who successfully absence ate the records and engage in gotcha litigation looking specifically at the contradictions in the we did was we altered the theory in which an excessive force claim actually took place and what all constitute the excessive force so when we first prepared the complaint this a lot of the things that we did not include was the totality of circumstances from where this incident first started to where the broken arm actually occurred we we now consider this entire situation to be excessive and to lead towards this concept of the being excessive force in other words are the but dina started off in front of the school he was compliant in what they told him to do they told him to leave the school premises so he left the school premises he went across the street and that point based on three different depositions three different witnesses the police drive up on the courier which this was not included in the first minute complaint they drive on the car almost running these three individuals over they claim they're not comply but they're cross street they're no longer school property that's compliant might be the next thing that happened was then they'd be in we're told again get out of here go away so they went down the street two more blocks and that's when the police continue to arrest them and went after them again harassing them calling them names and bullying them that they then said you know what they were going to totally disperse we're getting out of here my client went to his cousin's house was standing in front of his cousin's house on his cousin's property was having a conversation with his cousin for at least fifteen or twenty minutes according to my client's deposition the police then again right up wanted his cousin's property and say hey guys have to go out you're trespassing and he tries to explain to these on on his own cousin's property they don't want to hear it he decides at that point i'm going to go home at that point he crosses back across the street heading in the direction of his house down lap and and at that point the police the in stop him my client testifies at least six times in the deposition that he never entered school property again that he stayed on the sidewalk that he did not believe the sidewalk school property that he was heading home the police didn't come after him again he is now crossing the property crossing the intersection i'm trying to say and he gets to a median the police stop him at that median and he made me drop his bike puts his arms behind his back and that point the officers and i have three witnesses also testified to this the officers grabbed his arm pushed forward on his back and raises arm breaking his our i have a doctor's report this is that type of a break which was it was a spiral break that occurred it required great force and it also required a twisting of the arm for to actually be broken in both hands testimony the officer who actually broke his arm he admitted that he twisted his arm then he tried to change it up middle of the sentence to say not it means a twist i meant that roses are this becomes a question of credibility is not a question for the judge to make good at the time of motor summary judgment became an issue credibility it is movin g back to the actual contradictions within the record there was a contradiction specifically as i just stated about probable cause be a pelleas brief and motion for summary judgment attempted to say in their post facts that my client admitted to trespassing back on school property they put the specific item that they use we would have objected to at a trial would not only come in  evidence because it's a computer generated photo it is not the document that my client wrote on it is not even my it doesn't even coincide with the testimony at the point where that actually is in the record in the actual deposition which the apparently attached to the brief which is on a document ninety nine page t and line sixty there it shows a computer generated marking there should have been according to venus x or depo marked with an x there's an actual computer generated marks not marked with my client maybe this is not evidence but this is what the lower court relied upon the other thing page ninety nine document ninety oil line seventy it says make a red line indicating the direction of travel by pick plaintive and the red circle indicates the area where plane drops the individual off if you look at the actual depo which was submitted by appellant which is a contradiction it says that he was instructed to make a number one or time indicating where this wools but if you look at the actual map that was submitted there is a circle this is clearly not the same document nor is it the same place that my client marked and the reason that is because if you also go and look at the the deposition that was submitted by but what's not included in the x or if you go from page twenty four which the excerpt it tension only takes out page twenty four twenty seven if you go and look at the actual depo between twenty four or twenty seven he repeatedly says i only drove down the sidewalk it is hard pressed for you to say that this is our it that our client see it that he did trespass that there was probable cause when he's repeatedly stated that he didn't when the evidence is self that was presented it doesn't even coincide with a deposition that was presented it's wholeheartedly a misrepresentation of the facts a misrepresentation of our client's presentation of the evidence it's a misrepresentation of the graph and it does not coincide even with the evidence that was put forth before the lower court and they own that just even on the probable cause alone issue we should have been presented before a jury and the probable cause issue alone according to morfin and paulie they the court should have seen that this was an issue and for the question for the jury and they should have moved on at that point when it comes to the amended complaint issues are paracel at the last minute sent a letter to the court i have not had a chance to brief that letter i would like to brief it if the court is so willing to allow me to however in response to that letter i did take a couple of notes one according to the pepper case there's an issue of timing if you read the actual decision in that case the timing of that motion for summ judgment actually did address the amendments in the complaint itself this was not our case the other reason that they claim that it was futile for him to actually answer was because the amended complaint did not present plaintiff's counsel spends most of her time on a single arguments on i'm going to try and zero in on that and then hopefully by time i'll address some other issues but actually i would like you to address other issues  handcuffing couldn't they they could have but the law does not say that anything other than that would be unreasonable and that's essentially that the that's essentially the standard that the plaintiff would have to prove and i hope you can see me that the plaintiff would have to prove in order for this to constitute excessive force the act of raising the suspects hand behind their back for handcuffing is as the district court asserted ordinary i  issue of the jurisprudence set forth in stained back the dixon which says you can't just point to the injury you have to look at the conduct in question and so here is defendant's version of events which was not before the court summary judgment because of course under rule fifty six you have to take that into the light most favorable to the non working party but what actually happened and i'll go as far as to say that because that this is what the evidence really god yeah i i mean shouldn't jury have been able to see the evidence shouldn't that these questions if i can just briefly touch on same back and then a summary judgment standard i think i can answer your question because i think it's an it's an overlapping analysis that if for the purposes of summary judgment a dispute a fact must be genuine in other words there must be some fact in the record which would lead a reasonable jury to conclude in the plain disfavor in other words the plaintiff has to proffer enough evidence that it can satisfy the elements of his claims in this case neither the plaintiff's version nor the defendant's version are sufficient to satisfy the elements of excessive force or assault and battery so while technically the stories are not the same between the defendants and the plaintiffs the most important aspect of those differences is that neither version of events would have entitle them to to satisfy the elements of their claims and so and the reason that's the cases even under plaintiff's scenario and i want to be clear what we're talking about when we're talking about  plaintiff has throughout the briefs and even today at oral argument ben attempting to inject facts that were properly rejected by the district court what we're talking about is moving in a in arrestees hand about halfway up his back for h and what staying back says is sometimes as in staying back the exact example and staying back sometimes just taking an innocuous police action results in a significant but bizarre and unexpected injury and that's precisely the scenario that we're presented this court's precedent it would be inappropriate to give it a jury trial because the plaintiff has not been able to point to a set of facts that would have permitted it to succeed or to prove permitted the plaintiff excuse me to succeed on what what steyn back says is that there is not because you cannot use the injury itself as the basis to claim excessive force and that's that's this court's decision has said you need to look at the actual actions  that he did he'd according to the plaintiff's own testimony and says and if you look at the decision of the district court the district court actually took the version of events directly out of the plaintiff sworn testimony and all the plaintiffs said and again i want to be clear this is because it's our position that this is a fabrication of events of what actually happened is what the officers are saying it happened which is why it actually doesn't make sense is all the officers did was rained raises hand halfway up his back for him coughing and the fact that and this and staying back says this loud and clear the fact that a bizarre injury occurred as the result of that cannot form the basis of an assertion of excessive force because the action of the officer itself was reasonable and i think we're really waiting in to dangerous territory if we're going to tell officers that they need to be on cautioned by placing the suspects hands behind their back and  so just as a backdrop to all of this the stain back case itself is is very similar and there is another district court case that's very similar to the circumstances here defendants also moved for summary judgment on the basis of qualified immunity and certainly even if this court is inclined to say that while perhaps as a matter of law we can't say for certain that this was an excessive force the fact that those cases clearly indicate suspects hands behind his back or handcuffing him is and is not an excessive use of force they would certainly be entitled to a fine immunity excuse me case back to the lower court the statements from the police counsel and regards to the breaking of the arm and their version of the story being that he stepped off a six inch curb and that somehow result in his arm breaking is ludicrous and it is a question for the jury one of the other factors that we have not brought up and i'm not sure if it's in the brief but it was deaf man to the motion for summary judgment briefing is that the policy of the walking police department for  trespassing ticket is that you do not have to handcuff the person you do not arrest them all you had to do is write him a ticket and let him go so it is my position that the basically totality of circumstances including the fact that he was handcuffed after