good morning may i please the court first of all i would like to reserve probably two minutes for a bottle and on one level this is this the decision only one interpretation and also trumped all the other evidence presented in the case and in reviewing in reviewing the video tape what we have is we have a cherry tops flashing it's dark and in reviewing the video multiple times i find  difficult that a reasonable trier of fact could only come up with that there's only one interpretation of what that video means and that's essentially what the district court did and i think the district court i'm not going to say ignored but didn't give sufficient weight to the other evidence presented in the case that the district court noted that the videotape didn't correspond with the testimony or the deposition testimony that mr sanchez provided and the timing of what he said happened didn't didn't line up with the timing of what the videotapes so like that point when as ram or the point when mr sanchez fell so what do we do with that when you put his testimony in a timeline next to the videotape it doesn't correspond exactly i think if you look at his deposition testimony and in no it's his deposition testimony it's not a situation where you know for purposes one not only looks at the particular snippet that is there exhibit two eighty six which is the the portion of the videotape that shows trying to get him getting them next to the patrol car and him be either being pushed or fall in off the curb and i submit it shows him being being pushed i think if you put everything together and that would include his testimony the video that said two eighty six which is the one where i've been talking about plus to eighty seven to eighty eight and especially to eighty nine to eighty nine is the other it's  video camera from the car in which he was placed in before he's placed in the patrol car what you get what you what you see is and the cameras facing towards the back window the backseat what you see what you hear are cries of pain and i'll say to him not understanding why he's being treated in  manner he's being treated and you also say no to pardon me is the summary judgment based on the fact that he wasn't injured no what is the fact that he exhibited pain tell us pardon me the fact if if the issue isn't whether or not he was injured the fact that he expressed pain doesn't seem to me to make much difference with regard to the summary judgment that wasn't the basis for the summary judgment but what i'm saying is that when you when you consider the timing of the pain of the tiny nervous tries for pain when you consider the videotape and all of the evidence i think it does it is susceptible to a  fact that mr sanchez's version is is correct and once again i don't think that what i what i interpreted out of the videotape it's only susceptible of one would get the prior few minutes or whatever however long it goes for so so the the central incident and the sequence of events mr sanchez testified aren't reflected in the in the videotape that  to be the key to the district court's determination that the videotape contradicts mr sanchez's theory about how he got injured i think once again i mean with i don't think it does because what the videotape mr sanchez moving forward off of the curb towards the car and the officers moving with them and and this is all in the context of a very bright light in the in the in the in the screen so that basically what you would your sensually seeing are shadows so your view is that the video is not clear and so that it can contradict my central argument that there's a question of fact i mean i i have i have a fundamental issue with whether or not scott first is here as stands for the proposition here we're not talking about qualified immunity but but scott versus here us that's exactly what they're talking about and you know if we wrote summary judgment cases the question is at what point can a judge could not reasonably conclude x because x is too inconsistent with the evidence in both cases the purported evidence that made the difference was a videotape and scott it was the car chase here it's the videotape of the episode but that core they're both summary judgment  cases i understand that i mean but taking the context of scott you had a district court say one thing you had a circuit court of appeal agree with the district court and then you had the supreme court decide by an eight to one maturity that that the videotape said something else in which which i'm sure as i said the videotapes is something else i said that's enough for summary judgment that even though a pla has testified or is offered declarations in support of the given position that's not enough to create a genuine issue of material fact if in fact you had a videotape that says what actually happened but i think i understand what you're saying with regard to not making scott too close to this case but it court seems to me it's a summary judgment case and that's what this is yes it is but in view of some of the language in scott and the way that scott is on is that i think that if you look at all the evidence in this case and and put that together with the videotape i don't think the videotapes from sol the other evidence quite simply ok thank you right there because i looked at it i saw him stumble off the curb and i can see clearly what was going on behind his back whether or not the officers were twisting it or not whether they shoved him or not that was so clear to me but what else do you have the the plaintiff stumbles off of the curb because he wants to capture the video to show that there was no force used the plate of shows the officer gomez running to the car at some point prior to his  fall there's there's a a switch in the event there's a switch in the timing of when officer gomez runs to the car as the as the officers are escorting the plaintiff to the car they have him handcuffed and as admitted by the plaintiff there's a significant size discrepancies between the officers and the plaintiff so they have hold of his hands and they're walking him he's intoxicated he's acting erratically and then he stumbles off of the curb and if you look at the video you can see the officers kind of following after him there's no movement that they're shoving him they're sort of falling and stumbling after him you see are to me i didn't see that so clearly maybe of my eyesight is not so good i mean i saw  away after that but this fall was the actual incident that i guess is the trigger this case whether he stumbled off the curb on his own or whether he was pushed by the offices i just couldn't make it out so clearly well i would then after that there's  subsequent video after the incident after the plaintiff is is very is picked up from the street and is a very large man he's picked up by to drive five officers and he's six two or six four so they get him off the street and get him in the back seat is being overly emotional but you see the officer standing on the side of the road and they're talking and there's no activity there's no voices other than the plaintiff's overreaction to end the cape that any type of force had been used everything's very calm the passenger in the in the in the plaintiff's car is beating very calmly and friendly with the officer is my problem so the let's just anxious testified as they snapped his finger i can't see from the video because all king at the front i can't see what's happening behind his back as judge box as i can see if they snap it or not brazil boy he is making a declaration based on  as he'd knew them and i don't see anything in the video that blatantly contradicts them as in harris so how could how is their knowledge into an issue of material fact there as to the snapping of the if they can which is which is the basis for his claim oh well that's why we had the plaintiff examined by and hand specialist an orthopedist who had a right but that just creates a genuine issue of material fact as to whether was broken from twisting or broken from falling or whatever it is that that doesn't that's just classic summary judgment material that goes to the jury well i felt i would i agree with you if a counter medical declaration or expert had been retained if that evidence you know in the form of an expert opinion had been submitted to the court but it was not it was only plaintiff's owns detail i just said what's wrong with that he was there he knows but when his finger broke he felt it that that seems like it creates a genuine issue material fact he doesn't need an expert to to bolster testimony is internally consistent with the officers version of the events that i think is what trumps the plaintiff self serving evidence because he has nothing else to offer except his own testimony i wasn't in evidence would you be making the same argument i believe yes i believe so because we have we have the discrepancies and we also have an issue as to arguably if there had been use of force when a minimal use of force been justified in this situation where we have a huge discrepancy between between the size of the suspect the size of the officers we have an overreactive and intoxicated suspect the officers are allowed in permitted to use a certain violent or agitated or difficult to control while they're putting him into custody so i have this clear you're not willing to concede that if not for the video we would have issues of fact that could not be decided on the basis of summary judgment i  videotape as i correct that's right so you could offer you could have offered different arguments to the district court and you could offer alternative arguments to us now with the summary judgment we're looking at it was founded on the videotape on that one and on that one videotape the district court did so i would just again reiterate that i feel that once you look at the totality of the end of the evidence and i agree with the palace council that this is an evidentiary case that everything that we presented to the district court and to the court of appeals is consistent with the officers testimony and versions of how this incident occurred and i have nothing further if you have any further questions thank you apparently not we thank you for the argument and we have a few seconds left interpretation i believe not thank you thank you we thank of counsel for your helpful arguments the case just argued a submitted