contempt warrant they were announcing that they were at the wrong address they did not state the person that they were trying to arrest no one saw that arrest warrant not were agitated they were that was because nobody would open the door even after they were told the reason why this is true that judge jordan the officers were privy to some of the nine one one call the texts that were coming in from the nine eleven operator but what they were also privy to was the fact that the sons in the house mr rubin to mr hall were terrified and i when one operator even to acknowledge that  the dispatch acknowledge that and that was being conveyed to the officers the officers also knew that they were being video recorded multiple officers commented that there was a camera or an i phone that was videotaping them at least one officer on the facts that i have just presented to you which are the facts we would ask the court to construe that and for not faber well the critical determination at least for me is  whether an objective lay reasonable officer would consider that his safety was in jeopardy based on what was taking place inside that house and they were crawling on the floor and they were passing things around it could have been a gun and so they were there to serve a civil arrest mark but they also had the right to be concerned about their safety as well so why would  whether there was crawling all three residents of the house tonight that they were crawling but there is radio chatter between the officers that there was crawling safety is always a question there's we're not disputing that what we are saying is that the officers on the scene knew that they were being video recorded they knew that the residents called nine one one two times both both sons called nine one one and emphatically and repeatedly police officers it exactly in the neighbor was the voice of reason out on the outside right mr manning he comes over and he says to sergeant mcgee can i please talk to mr griffin i know them our daughters play together he goes to the window he talks to mr griffin and with ten minutes the door opens and you know what when the door opened it could have been the response from the sergeant and then the deputies could have been there was that so hard thank you and they could have arrested mr griffin right there and taken her away but that is precisely the opposite of what they did as sergeant mcgee said he said we go in forcefully i mean we go in with speed that's in his deposition and he told miss mcknight we're here to serve a warrant and when people aren't opening doors i'm coming in full force so i understand there's always a concern about officer safety but they knew at least our version of the facts they knew that these sons were terrified rightly or wrongly i can't put myself in their shoes but they were terrified and when the door opened all three adults all three residen standing right at the door there was there was no need to go blitzing into the house well i'm not sure that that's your strongest argument i'm not sure you lose on that either but i thought you were going to concentrate more on what happened once they were inside with regards to mr hall mr ruben except for it right because that's a different sort of allegation one is this judge wilson mentioned that they might have had some fear for their safety given what they say they observed and whether they acted maybe a little bit unreasonably or not they had some basis to go in there and make sure that there was no threat whatsoever you have other allegations about what happened once they were inside and had everybody secured i agree judge warden i will add this the pistol whipping on the entry by sergeant mckee on mr hall  obvious clarity and the allegation here will not just allegation but the testimony viewed in the light most favorable to your clients was that mr hall was already restraint when he was pistol  sergeant mcgee is that correct well that would be the that would be the most fair will interpret taishan well did he did he say he was restrained when he was when he was allegedly pistol whipped or not this was when they were charging into the house and take in the takedown phase but going to your earlier point judge jordan yes once they were restrained or subdued they were still being kicked punched you can hear the audio you know what was being said to them the racial slurs homophobic slur to mr hall these of these go into the factor into the tally the circumstances certainly the result in this of the seizure at least that's our contention they were they may not have been in handcuffs right away but they were certainly subdued because our client mr hall mr rubin were not resisting even officer williams and his testimony said no they weren't physically resisting and well here's here's the part that i got about the restraint and this is from the district court's order and the district court's order is citing mr hall's deposition plaintiff's claim that sergeant mcgee and the other defendants grabbed plaintive hall's arms and when both of his arms were restrained sergeant make he hit a hall in the face with his gun and he cites mr hall's deposition at page sixty seven is that not an accurate no that characterization of the record yes that's accurate ok it we also have the actions with the tas being ground into the the back the neck of mr reuben while he is restrained and subdued on the ground he wasn't in handcuffs necessarily at the time that's not in the record but keep these are these two gentlemen were terrified yes they backpedaled a little bit when the the officers charged in the door that's only that's only natural they did not resist they said stop stop stop what are you doing we didn't do anything and that that went on and on even at long after they were restrained but yes when one of the factors that the district court took and consideration was the summary of the injury it seemed i mean as a matter of common sense if one of see the skin break in maybe fractures in it but it just depends and by the way the nature of the force what are you doing this to whipping a young man in his home when he's all he's done is ask why are you here and i'm scared that's all he's done and i see running out of time i just want to make the language this is another point i want to bring to the court's attention the language the verbal abuse  morning your honour's made police record i mean mickey mcdonald and it is my pleasure to represent defendants and he hauled dick and hunt in this case judge wilson i think that you hit the nail on the head when the first thing that you said was we have to look at the objective the object of reasonableness of an officer and were they in fact concerned about their safety that of course is looked at from the perspective of the officer and so i do want to if you'll indulge me go through what the officers knew the officers knew back to make sure that no one exits from the back there's radio communication that is part of the record where officer jackson said i see someone crawling in the bag again what do the officers know the officers also do dixon hunt are to defend is there a name in this case dixon hunt were nowhere in the vicinity but they hear this radio communication being back and forth you know the occupants would not open the door and thought it was necessary because of officer safety to come to the house case analysis from the perspective of the officer no one from the perspective of the officer viewing the facts in the light most favorable to the plaintiff ok sure well even looking at the standards set forth in  we look at the severity of the crime we look at whether the plant is posed an immediate threat to the officers we also look at whether the plaintiffs were actively resist think the district court while saying because of course the big crime it is in here is obstruction the dish record noted i was that obstruction while not a severe crime there were factors that the officers knew that would have raised some problem the problem for you as i see it as the officers deny that in that for the fact finder to decide if we look at the evidence in the light most favorable to the plaintiffs in this case accepting their version of the facts is true or not the version of the officers that in the jury cited in my brief and was also cited by the district court is when you have two stories that are conflicting but one is completely contradicted by evidence in the record then the court is not at liberty to accept those facts as true so as it relate that's not this record when did mr hall go to the hospital to see a doctor sure the incident happened around one thirty in the morning mr hall went to the camp medical center later on that afternoon so maybe twenty hours later and you know in twenty hours someone's swelling can go down and some people are lucky that if they get hit in a certain way they don't suffer severe injuries but he did have swelling from a photograph did he not in my opinion it was not swelling ok so all right let's assume there's no swelling is your position here that i hall's version of the facts is true because we don't know what they are or not but this is his version that if and if a police officer pistol whips a restrained individual without cause and that individual has no visible injuries there's no fourth amendment claim well your honor i also argue below that these cases fall i know but before you get to the alternative argument i want to hear the answer to that one is there no fourth amendment yes violation so i happen to have a really hard skull and i do ok when someone hits me there and a police officer pistol whips me but my skin doesn't break i don't hammer agency i had i don't have a fracture but i was hit with a pistol by a police officer while i was already in cuffs and not resisting shore do i have a fourth amendment claim i do not think that you have a fourth amendment claim and this is why i'm i do know that the plaintiffs focused a lot more the nature of the force which would be the pistol whipping compared to the quantity of injury and that comes from the standard versus duke case which is court ruled on in two thousand and fourteen this case i think the allegations are that the plaintiffs were not handcuffed f a time of peace they were restrained according to the district court's order the district court citing mr hall's deposition says that mr  was restrained at the time that he alleges he was pistol whipped is that in correct well what i have is that the district court say that the alleged pistol whipping and standing on hall's had happened before hall was handcuffed  paul was what was included in the arrest report the incident report but the latest thing is in the incident report against is that there were no visible injuries and there also another reason why i think that there is not a fourth amendment violation is this was  one so it's not a published opinion no sorry does not do you have any published opinion from this circuit that says that hitting a restrained suspect who is not resisting either w with a gun with some other object is not actionable into the fourth amendment actually i do not have a case as it relates to or straight i have cases that you have any from any other circuit that says that in that circumstance threat but whether i know but once you have that's why the allegations and the testimony make a lot of difference and if the allegations were that he was still resisting or causing trouble that would be one thing but if the allegation is that the person is restraint and not immediate for force necessarily goes down songwriting well i would say not necessarily so and this is why looking at again the governmental interest of officer safety they are there was a heightened sense of awareness and that is testimony in the record sergeant mcgee's the that the crawling on the floor in the refusal to open the door increased his security awareness the same projects and the same for dig the same for hyatt also there were other deputies that came to the scene who had the same opinion of ok something is going on in south is out that i understand that obstruction is a lower severity crime but maybe there are narcotics in the house maybe there are weapons maybe there are other contraband in the house and because officers have officially but the concern that i had as once there was for all that took place and then once they're restrained did they go overboard once they're do strain on the ground and they're handcuffed i think what they're saying is they went a little overboard you know with the tasing and the pistol whipping and the spitting and the cursing and and the body slamming and so but the officers say they didn't do it and so you got two conflicting versions and so i mean we've got to look at the evidence in a light most favorable to the plaintiffs and let's say if this is an issue for the yes would knock you off for your clients that missed the hall's version was blatantly contradicted by the evidence that the medical report showed no trauma no no of facial issues and then the instant report showed that there were no visible injuries but it did show that he knew he was sore knees back was sore and negate him some some minor medication but why does the court below have to take mr hall's version of it if it blatantly contradicted by the well your honor i definitely agree with that point and that is something that i raise below and in this court the case that i cited was singletary versus vargas which is eight zero four f third eleven seventy four it is an eleventh circuit twenty fifteen case which lays out exactly what you just said when there are two conflict in stories that in one is blatantly contradicted and i will submit that there is a blatant contradiction judge wilson as you say to me common sense tells us if a individual is pistol whipped by an officer and there is testimony and you can see from the video sergeant mcgee is be some type of abrasion some type of lesion some type of bruising bruising possibly even an open cut on the face and even when you look at the photo that i think counsel referred to as exhibit nine in this griffin's deposition you don't see any of that report of the police officer that was given while defendant plaintiff paul was at the cap medical center but that can't that can't be used the medical records no no no the incident report of it's contradicted by the plaintiff's testimony a police officer prepares a report about what just happened during an arrest right ok that officer gets sued under ninety three for let's say false arrest or excessive force the plaintiff's denies everything that's in the report you can't use the reported summary judgment to win right to establish facts well the report was based on the allegations that were to to the officer by plaintiff hall so those are points of paul's exact words the but he did but he denies that he said that plaintiff denies that he say that the statements in officer fams incident report as they were relayed in that report does he not know so i don't think so was he asked the question of whether or not he told that story to the officer yes i do remember asking him during his deposition if he provided that report to the officer and read of the in their report those are the words of paul and the allegations that he claims that plays the early morning hours prior to the last census in the incident report the officer indicates that he did not see any visible injuries and so that is part of what is what i believe to be blatantly contradictory to the story that was given to claim from paul on your arms that the that i am running out of time and so i would submit and i think they were kind of streamlining this jackson in looking at the nature of force versus the extent of the injury because here i mean we did not see any injury as a result of their tasing the tightness relied on the sound as we do case for the fact that courts have now shift their focus to the nature of the injury versus the to nature of the force versus the injury but in further reading that what the complete quote from wilkins versus getting which is a five ninety nine u thank you we would be going into bad territory if we were to deny a jury trial on the basis of a police report and a statement in a medical record the fact violation of the fourth amendment excessive force but let me just read you the few sentences at the end of that case officer baron used a minimal level of force a soft hands straight arm bar takedown technique to do so he did not use a weapon he did not hit punch or kick or he did not have assistance from multiple officers he did not throw or into the ground with intentional or gratuitous unwarranted force nor did he use any force against her after she was on the ground he did not use any force intended to cause injury rather horn's injury was the unfortunate result of officer baron's reasonable use of force this case is the opposite of that