allowed told a different version and during his deposition during his deposition he stated that mr group resisted him by pulling away once he also demonstrated the move which was video recorded showing him  backwards as officer mulatto alleged and as he demonstrate it based on officer mellows inconsistent statements and based on the surveillance video which contradicts officer melo a reasonable away to some degree would that have authorized force marking him to the ground with him back him no your honor even if he did tense up or move backwards in response to being f years was unreasonable under the th amendment protected by qualified immunity what happens to the indiana state battery claims at that point it was i'm constitutional you're saying but protected by a qualified immunity your honor i do not have the answer to that right now perhaps my co counsel then during his rebuttal otherwise i met well i'll tell you why i'm asking i mean you said they rise or fall together and both sides have made that contention and i'm just trying to figure out if that's true for purposes of qualified if we decide if we were assaulted on call fight immunity it just wasn't clear to me whether that was true because you didn't flesh out whether the scope of immunity under indiana law mirrors the same truly intoxicated his senses including his ability to balance were seriously compromised not only to the officer malev himself state that mr group that was officially intoxicated a reasonable jerk could find that officer malone had knowledge of mr  into visuals with an officer i'm both sides of the individual to present superman the type of hat and spine injury that mr group does the same there was no need to remove remove mr group from the hotel at that moment officer club had gone into the front desk area to speak with the front desk clerk just for a few moments officer no one could have waited until officer comes returned from the front asked to move mr according to the manner in which they had been injury like officer should have known based upon the circumstances presented and the forceful chart throwing mr group that's your promise plainly excessive and objectively unreasonable at the time of the incident was clearly established that using unnecessary interest the officer pushed him in a police car causing him to injure the officer should have known based on the circumstances that the shot of was plainly excessive and he was not in talks nic we said before that the you know rambo that see the constitution clearly does not allow police officers to force a coughed hasim suspect into a squad car by breaking his ribs you you seem to argue in your brief that if the video were not conclusive evidence in favor of point if it could not be considered i've looked at that video and i can easily construe that is deliberately knocking mr group to to the ground in jumping on top of why is that i mean that would that would clearly be excessive force or a passive or at least  cocked and most passively resisting suspect so why is that not enough to get to the jury on the on the one you know excessive force going this year on me on the excessive force claim i think i is not consistent with officer mellows testimony or the written reasonable jury could see it is inconsistent with his test well i think the supreme court case and stop versus harris indicates that where there is where there is video that is that is conclusive the parties are able to yes if it's conclusive i watched that the justices in scott watched the video of the police chase that night most of them agreed brief opening brief pulled together a number of cases roughly pages twenty nine to thirty three of the brief a lot of cases dealing with suspects who are either not resisting at all fully compliant or were no more than passively resisting in which significant force was used and we have said that at least gets to a jury i didn't see any that there is a recent case from of that this court decided that is very close to the present circumstances and that is johnson versus rogers the court decided in not late two thousand and nineteen and in that case there w rescue to comply with the commands to stay on the ground and that resulted in a compound fracture of his of his leg and so the court basically said that even if the even if the circumstances of that cause the injury the it was undisputed that at that moment the officer used the force it was understood that the arrestee was not in compliance and the officer was attempting to gain compliance that's  there was passive resistance and so it was ok as a billiard to comply right he's well i think the he was not moving and he was saying that he was not going to exit the lobby until he spoke he had an opportunity to speak with the chief of police and also it we don't have we have the officer's testimony that he stiffened and pulled back and because mr gupta doesn't have any recollection of the evening he doesn't have anything to counter that and then i guess the video because they're standing back we can't see it but then we have the affidavit at the hotel clerk was that he was at least passably resisting a i guess mildly resisting and i would consider not i'm stiffening the same as flight right not enough under indiana law to be resisting arrest right and start your waxing muscles is not enough to be resisting under the under indiana criminal law as  submitted you know for resisting arrest and that sort of thing so i am i'm having trouble figuring out how he has a th amendment claim for th amendment where sorry for malicious prosecution because he wasn't detained based on winds up kind of going back to this court's pre manwell vs joliet jurisprudence which focused only on the initial arrest and not in the th amendment was not applicable after you'd appeared in front of a judge supreme lose we were wrong about that and i understand the plaintiff's th amendment the malicious prosecution claim here to be focused on the pursuit of the resistance charge after he appeared in front of the court he obviously was and was going into custody that night but the real problem is the continued prosecution on that plane well under under c there's no such thing as a th amendment malicious prosecution claim so we hear he was arrested for resisting on forcemeat as well as public intoxication and there's no question that there was probable cause for public attempted to remove him from the hotel lobby so i guess even assuming the viability of a malicious prosecution claim here there was nothing malicious or unreasonable i guess as  officer mellows testimony in the evidence we see on the video i don't do direct that those that is correct or aren't but i don't believe that officer mellows deposition testimony and the affidavits and the video are inconsistent they're all they're all the contention that there wasn't probable cause or again if we look at the probable cause affidavit if we look at the deposition to testimony the video there was probable cause and even if there was it probable cause there was certainly arguable probable cause which would again entitle officer mello to qualified immunity under those circumstances eight so if you could just be fresh my memory here w the excessive force claim there wasn't any clearly established law that that perimeter that officer mellow from forcibly tugging a drunk i think what he said was a non compliant arrest try to get him out of the hotel lobby and so you know it's their burden obviously to try to demonstrate that they cited some case law but you know five of the seven cases that they cite in their brief to try typing yes that is fair i'm sorry that is fair enough yes and so but even under there the cases that they have cited from the seven circuit nothing they cited has clearly established that officer mellows conduct was was unconstitutional or that any or every reasonable officer would know that they're up there other formulation is is to try to get asked qualified immunity by by arguing that it was so plainly excessive that they don't even need personal knowledge of that but i i don't recall hearing of any of expungement motion filed although i think he'd be eligible to have that done thank you with respect i think judge burton asked about the hotel clerk says he saw our person while away and resist the officer when the officer grabbed him he demonstrated what he said he saw in his deposition research mister happened his hands were cuffed it's clear that the hotel clerk could not see the interaction between officer mel and mr gupta because at the time of that interaction officer cook the other officer had gone into the hotel lobby to talk with mr awad of the hotel clerk who had left his window where he could see the out in the vestibule in went to the front desk to talk to officer cook they both a minute while they were there at the front desk and at only took forty seconds tween officer quick leaving and coming back after mr greeted phone neither one could see the interaction between officer melo and