factually it is perhaps not so simple the issue for the court as i have framed it is basically did the district judge properly employee  the facts and inferences from the facts in the favor of my clients in determining qualified immunity as the short circuit escape hatch for the defendant police officer in this case the fourth amendment the prohibition against using excess of force in dealing with a citizen in this context in dealing with an arrest for a disorderly conduct charge and in particular his use of pepper spray being unprovoked and unnecessary in the circumstances and that is use of a flashlight as a weapon numerous times striking pedro without  those are the clearly established parameters and of course as the this court in the supreme court has failed there does not need to be a specific on all fours scenario exactly duplicating this in order for the police to be held accountable  briefing of this case and by the way this event happened almost five years ago so there's been a lot of time passed in the meantime but this court recently last january t also involving the use of a police dog that was in clearly established five years ago and well i suggest as well your honor that this case is clearly established in that a police officer cannot use you could use an argument but it's not a specific fact that being subtle shouldn't all the facts leading up to the pepper spraying stated by officer montoya which are not disputed by specific facts like you do in your statement of undisputed facts be taken as true i don't think so your honor why and there is the reason if i may for one thing the response  concerning statement of facts specifically alluded to facts an inference as the without provocation certainly is an inference fairly that's not the argument from a fact or from the absence of the fact that you were required under local rule one point one zero one one to state specific facts what specific facts did your statement make which contradicted the the statements of the montoya by the way keeping in mind that your man pleaded guilty to disorderly conduct and under heck person humphreys we cannot make a finding contrary to the essential elements of that charge which include at least disorderly conduct well concerning head versus humphrey that was alluded to also in the smith versus city of human case and th e particular is that that only applies if the conviction necessarily implies that there cannot be a finding of civil rights liability and in this particular axiomatic i mean from the graham case the the concept of a police officer not being able to use force that is outside of the realm of reasonableness based upon a variety of circumstances from the charge  and arrested for to the conduct of the circumstances of the person being arrested all of those things go into the parameters and i suggest we don't have to have a suggest that that is case law replete in the history i don't have a specific case with specific specific similar facts that your honors i would like to  trying to pull him away do you agree that mrs ford to yo this claim was dismissed without prejudice and exercise of discretion by the district court and has appealed her claim was told men in their twenty's some adult males threatening the officers confronting the officers this was a situation in which the officers felt that their lives were at serious risk a neighborhood that they were very familiar with they had been shot at in the past or they specifically had him but other officers had been shot at officer spears had had rocks thrown at her by people in this neighborhood they needed to get this situation resolved as quickly as his son had been detained but if you go to the deposition testimony that's attached to their statement of fact he acknowledges he was angry and upset when he approached the officer he acknowledged that his voice is a little deep and he acknowledged that he has a naturally strong voice whenever he addresses someone so i think that's contrary to the sort and he did which at a minimum would be making unreasonable no lines and we of circumstances that one must look at to determine whether excessive force was used but we've got this big group of people including mr parks hero confronting threatening the officers and putting them redoes quickly each one of these arse are supported by deposition transcript copies as well pedro portillo did not yell at the police officers has he inquired about why his minor son had been detained by the police officers to without provocation or justification david montoya used pepper spray multiple times upon pedro portfolio and rosa portfolio three after being initially pepper sprayed by david mont genital area by blocking flashlight strikes with his hands and arms and nine page david montoya used pepper spray against pedro portier and rosa forty one rosa forty eight was shot to protect her husband being beaten with the officers flashlight i submit that there are sufficient factual issues when viewed in the light most favorable to the plaintiff's i think you coun