in this case i believe that there are two very narrow issues that are deciding one is whether there is a properly supported material dispute a fact and assuming the nd assuming all of these supported facts in the non moments favor whether officer news is entitle to qualified immunity the briefing i believe the main contention of my of the responding party is that there is a dispute of fact and we of course maintain that there is not and the district court agreed in that mr mckibben was resisting and our main contention is that the district court misapplied the long qualified immunity for purposes of applying the law to the facts that the district found which is that mr mckibben was resisting and he spun away from the officer when he was trying to detain him and tried to get away the qualified immunity law i ask you something was or is a tribal in the record indicate that what happened was i had to recreate this myself just to see it in my head to picture it was he had the wrist lock he kept telling mr mckibben to put his other hand behind his back so he could handcuff him to detain him and he would not do that so he switched hands he had the wrist lock in one hand switch to the other so that he could reach back to grab his handcuffs and that was when he spun out so he still had one hand on him and is still holding him and then when he did the leg sweep maneuver he was still holding onto his hand i believe is what the record the facts say so he did it he still had him by one hand it just wasn't the same because he had switched hands and the construction workers were ninety year olds were well the facts indicate that they were close by there were actually two witnesses who say they were close by and that was both mr barnes the supervisor and john the alleged poked construction worker they said they witnessed the event in their close by but officer knew he was focused on mr mckibben so he actually did not see those construction workers nearby but wouldn't we interpret the distance in the light most favorable to mckibben and doesn't that put them farther away i believe that there are no other facts that what material supported facts that support that heat the all of the construction workers were ninety yards away age or weight there are disputed material facts about his conduct in the wristlock do we have the conduct of mckibben is established by his deposition which states he doesn't remember what happened i believe if you read his deposition his deposition testimony as opposed to his affidavit he says he doesn't actually remember what happened everything happened so fast maybe the officer said something to him he doesn't remember what and then he may not have listened to what the officer said and then he everything else happened so fast until he saw stars so the question of whether there if there is a material dispute a fact whether the court has jurisdiction if this court were to find that there were supported facts that mr  did not resist arrest then the court even presuming facts in plaintiff's favor still has jurisdiction to consider qualified immunity if the case law doesn't establish a clearly established right so under emmons under county versus s b versus white versus poly all of those case indicate there needs to be case law which puts an officer on notice that an officer is violating a clearly established lot and that indicates whether the the officers prohibited from doing what he did so mckibben testifies that after the like sweep when he's on the ground things pushes his head into the ground and crushes his hand is there any argument that if we take that as true that once he's already on the ground his face is crushed and crushed his hand that doesn't violate clearly established law there isn't clearly establish law on that specific fact and wouldn't it be very severe force after the person was restrained at that point when he's on the ground i don't know that would seem to fall under  category of totally unnecessary force wouldn't it i just i don't think that the facts support that that happened other than through his his affidavit which contradicts his deposition testimony i believe that there is he's contradicted his own testimony between the affidavit and the deposition the medical records in this case indicate that his his face was the injury the doctor medical doctor reviewed says that the injury was consistent with a face plant that he felt these injuries were consistent with falling that includes the hand injury where it's the doctor said it's consistent with a fall or with a boot but so it's the medical evidence is inconclusive and mckibben testifies he crushed my face into the ground and stomped on my hand so it seems like that's at least a fact dispute right i don't believe that well i don't believe mr mckibben has substantial evidence to support that his hand was crushed well he did have a fractured finger he did and indeed two fingers i believe it was two fractures of his hand i don't believe it was just the particular fact that it would be taking the affidavit apart from what is contradictory and what is somewhat  i didn't or i'm not even sure newt's that he didn't where's the testimony where newt says he didn't i believe it's in in his testimony or he if i'm thinking about again i had to picture because everything everything the way it was described was he had to have him down on the ground holding him with one hand and offs sorry mr mckibben had a hand on his head and then also having a high a boot or foot on a boot or foot on his hand it doesn't make sense of how that would happen how he would get handcuffs on him with both hands occupied and also a foot off to the side on his hand he also didn't know where his hand was at the time so mr mckibben testimony doesn't make sense it doesn't go with what he is alleging it's for the purpose of making them in this material disputed fact it's not supported by the substantial evidence based on his other testimony through  contradicts the idea that his hand was crushed once he was on the ground the the actual physical act of whether something whether someone can have a hand on the head i hand on on the wrists for purposes of trying to apply handcuffs and then also having a foot on on mr mckibben his hand on the ground it's not physically possible to do that you can't know what i record tells us that it's not physically possible or trying to apply handcuffs with one hand it's not possible so if you have one hand occupied with trying to hold his wrists trying to also put handcuffs on him his fee i don't know how you have a hand on ahead and hand on hands and then also a foot over off to the side where's hand as and we don't know where his hand is his hand could very well be underneath him a years on a little hold as a matter of law it's impossible that mckibben is telling the truth that is hand was crushed no i believe his hand was crush that's supported by the medical evidence so you want us to hold as a matter of law at that it could not have happened intentionally i am asking this court to hold that there is no substantial evidence to support that is hand w it sounds like you're asking a sick contests the facts as alleged by mr mckibben which would lead to no jurisdiction no your honor the the argument we've made is that there isn't substantial evidence to support that mr because the force would have been necessary why he was attempting to detain mr mckibben based on being called to this site after he had a cost to these construction workers he had been giving them problems for a long time they wanted him to leave he kept coming by and so the police were called he was called out there to assess the situation and find out detain mr mckibben and find out what happened and that's what he was trying to do and mr mckibben there isn't a speed that he walked away from the officers and he admitted that he may not have listened to everything the officer said that that is in his deposition and that officer nuthin had to go grab him bring him back to the car for purposes of safety so that he could talk to him that's what he was trying to do he then wanted to handcuff him for his safety because he had someone who wasn't listening to him he continued to not listen to him so that's when by now the district court found all of these facts already of course this court is reviewing novo but the fact that he was resisting and he spun out away from the officer he then had to take him down try to handcuff him and then restore order to the situation that he had been called out to so in in those circumstances i believe that officer news is entitle to qualified immunity there is no case law that says he can't do those things which under ammon's you have to be able to point to case law where it shows that the the actions are actually prevented under the th amendment what about long versus county of riverside which talks about not being able to use significant force that would cause injury when the person being restrained only committed minor offenses if i'm remembering that case correctly all of all of the cases determining significant force with these minor with minor offenses still is based on whether someone then resisted if someone then resists the courts that the officers then the will and admitted that he initially resisted and your honor i'm sorry but off the top of my head i'm not remembering the facts of law and but as far as the kid the cases which have been briefed by both mr mckibben as counsel and myself in reviewing the major theme was whether someone was resisting and it had to be more than passive resistance because some of the cases the passive resistance it was too much or someone jerked a head away because they were screamed at that that wasn't considered resistance it was it was more in the category of not resisting or passive resistance and in those cases the leg sweep taking someone down was considered excessive but in the case of when someone is resisting the case law stylish is or does not establish whether the takedown is prohibited argument if it wasn't clear before that this is a dispute over the facts and not the law i think this argument really if this race that out now let me ask you something is do you dispute that mr mckinney was trying to resist  was asked was something what he said what he testified to was i was under his control from the moment he touched me and he testified to the fact that he he doesn't he didn't resist and he wouldn't resist an officer there's nothing in his deposition that contradicts what he said in his affidavit the fact the matter is he just wasn't asked these specific questions and he wasn't yes and presented direct testimony in this case but there is also the fact that he doesn't remember this incident not only is it not surprising because everyone agrees it did happen very fast and it resulted  mckibben having his face smashed in and broken and i mean it's not surprising that the details are a little murky but we can look at some of the objective evidence in some of the other witness statements to infer that didn't look like he was struggling based on the size weight strength disparity i think a jury could certainly find yeah i'd i don't think that that this guy could have gotten out of  k that was placed by a much larger stronger officer and that he did maintain according to officer can you throughout the entire the entire incident he he  didn't offer can have never claimed that he spun out and escaped and also the very short duration of the encounter and you know officer can use didn't list resisting arrest report of what happened i think that a jury could find that that would support concluding he did not spin out or otherwise resist but at the end of the day  again these are these are generally disputed facts and there are several comments that i would like to go over five time that are supported in the record but before we get there even if counsels comment that all of the cases denying qualified immunity where there is a takedown or a substantial use of force against a person suspected of a minor  nonviolent crime who didn't pose a threat that they all involve people who were resisting that's not true in fact one of the central cases that officer can do with relies on in that briefing shaffer this court found that under similar facts and more challenging circumstances and a more combative suspect who was found guilty by a jury of resisting and obstructing that the use of the leg sweep and that under those circumstances was excessive the court granted qualified immunity finding that it wasn't a clearly established violation at that point what do you best case do involved a takedown valving a takedown takedown of a suspect someone suspected of a minor offense young and blend in or both do one of them was a traffic violation the other  other scapes me at the moment but this is a quote from you know the principle that it is on reason most use significant force against us a suspect who is suspected of a minor crime pose no apparent threat to officer safety and could be he was kind of like no leave me alone at what he's thrown up his arms at certain points officers argued that this was threatening he threw his license on the ground and ultimately three officers tackled him to the six you know our conclusion comports with the logical notion that is rarely necessary if ever for a police officer to employ substantial force without warning against an individual who is suspected only of min  states that if that if the relevant factor on resisting is if someone could be found by a jury to not to not have resisted but mr mckibben never said i don't remember whether i resisted he said essentially no way i mean i i know that i was under his control from the moment he touched me it was boom boom face mash and broke and i you know i i didn't i didn't try to resist him at any point  the fact that his memory of exactly whether something was said or not doesn't it doesn't this comes down to a credibility decision for the jury they're going to hear the wrist lock now compare that to shaffer the reason that the this court found in shafer i'm trying to figure out whether schieffer was decided before or after this incident you know i is excessive with this suspect who is resisting but more importantly it's not only distinguishable on the facts of the court's rationale for why it wasn't clearly established i think it's actually kind of a perfect j cases that were cited by the plaintiff in relied on by the district court in denying qualified immunity the two main factors were that it was a challenging environment  and that the plaintiff there was physical resistance and the reason that it found that nd factor is because it had to it was considering the facts to respect the jury's verdict and the jury had found that he that s have resisted arrest or obstructed or delayed the officer so those are the facts that the court is dealing with those are not the facts of this case those are disputed facts in this case so even under that the court found that   being on the ground feeling that hand on his head grinding his face into the ground and feeling just like anger coming off of the officer and feeling a boot or something crushes handle it sound there that part of the encounter he's clear on he kind of straddles him but he's not sitting on the kitchen and you know we don't know exactly how the hand was crushed but he's got he's got a head or i'm sorry he's got a hand on the back of his head pushing he's got another on the wrist and he you know at some point during this he places handcuffs on him i don't think it's it's beyond the laws of physics for and to be able to pull this off i'm not sure  well i guess i guess what the reason i keep going back to schaefer is because it's kind of at the center of appellant brief and it's just it's such a i thought i realized in preparing for this  it seems like the perfect juxtaposition of this case because it's an example of a court applying qualified immunity to do what it's supposed to do which is protect officers when they seem to be reasonably trying to do their job appropriately  in that case there was repeated verbal commands said the verbal commands three or four times to this kid who would know bay said why do i have to drop my balloons and then he escalated that  arm grab yes get laid at that according to the officer sitting him on the ground and then he tried to run and then from there went to the lakes we hear the whole kind of the whole point the heart of this case is that there was there was no escalation there was no need for it to go to this level but you know also can you just kind of barreled into a situation that was minor to begin with had already resolved he was walking home and all of a sudden next thing he's in the you just to address a couple things that were brought up the objective evidence from the other eyewitnesses do does indicate that they saw mr mckibben spin out and resist arrest one of the witnesses i believe it was mr  was walking away and he turned around and saw mr mckibben walk away from the officer come back and that he was flailing his arm as officer newt was walking him on the side of the car you saw him spit out and then he saw the takedown  max barnes who was the foreman he did say that he saw the wristlock applied to mr mckibben and saw him walk back and then turned away he did not see the takedown itself those are both contained in the excerpts of record for their depositions so there is