beginning with the emotion for her for summary judgment this court does have the ability to review a motion for summary judgment after trial mr hayes's motion is of course based upon the material then it's gone i don't believe so based on what based on either can't get review of the summary judgment once you've gone to trial the jury rules against you unless you  for that proposition and i would further point out that i don't think it's unusual for a defendant's he go to trial lose and then appeal the summary judgment denial and we're just saying that the will for plaintiffs is no different although i will grant you that the situation in that particular case was a defendant again the the central issue as it relates purpose of the stop is to investigate fraudulent ticket sales because earlier in that week he received information that there had been some fraudulent ticket sales outside of the marquee box arena mr hayes sporting officer tells the officer that he does not have to put up with racial profiling and turns around and walks away what happens next is the reason why this is an arrest the officer grabs mr hayes puts him into a pressure hol up getting grabbed put into a pressure hold and handcuffed there is no officer safety concern in this case at all and the officer doesn't even articulate any safety concern for why he would need to put him in a pressure hold and handcuff him we believe that this is a clear or wraps moreover mr hayes had already communicated to the officer that he did not wish to talk to him and turned around and walked away no last if you're on the street the only difference of course is if you're under arrest you can't physically walk away here mr hayes did walk away the officer was upset and his testimony establishes that he grabbed him puts him in a handcuffs and this was not related to any ticket scalping investigation he did not have a reasonable suspicion or argue to even talk to him about ticket scalping but even if you did he certainly didn't for fraudulent ticket sales which he testified as to the city workers mean this will work was what he was trying to establish but the officer had been told that your client was fighting with a woman moments earlier right  don't you don't get a second try here and sure let me just say that i don't think lawson established that but let's consider the trial testimony since since you ask about it because i still think it's a relevant to the analysis here what  testified to was that he stops mr hayes and i mr hayes turns around and goes into a jog or a brisk walk is how he puts it he says that the other ticket seller had made the statement that mr hayes was fussing and fighting with his girlfriend or with him depending on which section of the transcript jury and officer kosek says that he then tracks down mr hayes grabs he's been reportedly fighting with someone you know we've got legions of cases talking about the use of handcuffs in the context of terry stop and doesn't automatically turn it into an arrest sure but i think th jaw and fussing and fighting that term fussing and fighting doesn't in doesn't connote a physical fight the ticket seller was not communicating to the officer that he was parched or beat up or anything like believe that he objectively has some concerns about officer safety and safety of all the crowds around the bradley center at this highly sought after  i don't know how how sort after the game was but let me say this i still think there's a lot of people around right he kind of agrees the situation control the situation but that doesn't end the analysis here because just because the officer can use force of actually to stop doesn't mean that the that there's not an arrest here and keep in mind the jury also found that there was no reasonable suspicion the human stopped him and that's where this court's analysis should really begin which is at the beginning which is did he have reasonable suspicion to stop hayes to investigate the original ticket scalping or fraudulent ticket sales and if so how long could he hold them for what type of force could he use for when the officer testifies about fessing in fighting he's talking about something that that isn't even related to hayes number one he's talking about a conversation between officer purnell reynolds and the other ticket seller which is a close proximity he says he any their secondary backup argument is well there may be reasonable suspicion to stop him for the united criminal and this will call a violation for selling tickets over face value but that doesn't even hold water he's standing there holding a sign saying we need to take it the fact that there's another man saying that there's a sign selling tickets only indicates what we all know which is that there are different prices for different seats people have a preference on seats that doesn't indicate ticket scalping at all and i don't think that's a reasonable basis to stop mr hayes and even if it was it was not reasonable to grab him and the world to bar him from walking away as a relates to mr hayes as related excessive force claim again the central issue in this in this case really is the force he used and whether or not it amounted to arrest but also whether or not it was excessive and in this case again based on the trial testimony it was excessive to grab mr hayes put him in a pressure hold and handcuff him to discuss what someone else said was fussing and fighting this is not a crime of violence i don't think that's a reasonable interpretation of that phrase fussing and fighting again i point out there's you know again the sports analysis should begin at the beginning as to whether or not there is reasonable suspicion to even stop him much less put their hands on him this is not a situation where mr hayes was fleeing from the officer although he says he turns around from him and goes to this walk slash jog that's not equivalent to headlong flight and in this case again the crime being investigated is not even really a crime and really should end up said that the courts of appeals are powerless to consider motions requesting review of sufficiency the evidence in the absence of fifty being motions it is clear on the false arrest defendants it's right they want to renew a qualified immunity decision as i understood it their argument was this you can appeal this if it's denied the court said yeah you could of but you chose not to and now you can't after the fact decide you want to go back in appeal that qualified immunity is right and why shouldn't that be specific to the qualified immunity context because qualified the meaning of has had no basis dispute some material facts that it could not decide and could not render any decision purely as a matter of law and so it wanted this to go to trial and even in qualified immunity cases where qualified immunit into question here because what i want you to do is i want you to consider a court of appeals the record as it existed at the time the surgery summary judgment motions were made oem and so therefore what it and instead focus put yourself in the shoes of the district court and make a decision as a rule of law first make a decision that there were no genuine disputes or material facts and then secondly rule is a matter of law in my favor hayes never cited to any i was not able to find any the closest that mr hayes comes in as recently as is citing six star holdings which indicates that it you know that it can do this that your questions of law and its rule fifty motions are necessary promises that doesn't address the issue here that doesn't say a court of appeals you can put yourself in the district court shoes and furthermore you can ignore the trial record and instead use the summary it was mr hayes position that it happened when he was placed in handcuffs when you when he was stopped we in it was our position that no there was no rush that was essentially controlling a scene during a terry stop that another of what actually happened point by point by point right is very little disagreement on any of those points as i understand the record right they all agree there at one particular place at one particular time after that it while the diver hayes is trying to accomplish or he could accomplish he could have just made the fifty motion because i think in the end he is making the argument that the sufficiency of the evidence at trial does not support the here and and this court has the ability to review that under certain standards in place well but the steep standard for the district court and and have to overcome to overturn a jury verdict absolutely it's steep it's not in its favor but but at least to be in through the front door i'm saying he's not even getting through that front door for this court even consider that because he did not make the motion then and that might you know be unfortunate or someone might even say that's  unfair just because they make a motion but you know this isn't some recondite unknown area of law that you have to make the motions you don't make the motions you don't have a right to appeal and that's the f he argues there's a per se there should be a per se finding that there was excessive force because that the jury did indicate here that the initial stop was not supported by reasonable suspicion but that was a finding of the jury and it him from going anywhere but the the jury itself made a decision on this they were asked point blank was or excessive force was or unreasonable use of force they said no and so this part of this idea that there could be a per was not consistent i asked if it was inconsistent moments mr yes i believe it's consistent is not inconsistent on that point and this is within the purview of the jury they they said there was a stop that was unsupported by reasonable suspicion however it was not a proximate cause any injury and that any force used by officer cooper sect was not unreasonable and they were they were suspicion i think the law is clear that under terry stops you can an officer is entitled to utilizing force and that's what he did here and it's consistent with it and this is where we get back to the issue of the hurdle that the court would have to evidence we have here and i think that is a hurdle that mr hayes cannot overcome up especially to the specific argument they make as to the per se finding that is not only not the law directly inconsistent with the black letter law on that issue in this  best position to understand the dynamics of the case and what equity would demand and the district court exercised its authority it is documented that it did so mr hayes me and preferred some more long winded explanation but i don't think that declaration so there isn't a dispute as to what officer cooper sec testified to and his declaration of agrees with his a municipal court testimony it is true that in our brief we've you point out that ther factual deviations which we discussed earlier but that meanly goes to the excessive force portion of this case what i point out is that when an officer uses force against a citizen it can be an reasonable and it could be unreasonable in terms of being excessive but it could also be reasonable in terms of meeting a different standard such as probable cause and so really we've got you know irish twin claims here a a relates to this particular incident but there isn't any dispute as to what officer who was testified to what his version was that was put before the district where it is true that that mr hayes does describe his injuries differently he does describe determine the severity of the crime this was not a split second decision needed for officer safety the officer did not have any reason to believe mr hayes was armed or dangerous or anything like that that's all we're asking the court to decide the court does not have to adopt a per se rule to reverse the decision we don't think any reasonable jury could find at the force the pain compliance technique that he testifies to that's what it is it's a plain compliance technique was