thank you may please the court your honors my name is al bruce house i represent mr davis mr davis its appeal from the grant of a summary judgment is limited to the grant of the summary judgment in favor of officer miller this appeal seeks a reversal of the district court's decision regarding the first and eighth causes of action and arena and to have those causes a faction tried before the jury the first cause of action alleged the use of excessive force and there were geisha of the fourth amendment the eighth cause of action alleged to state law a claim of battering the district court after reviewing multiple exhibits opposition's count of motions cross motions decision on the doctrine of qualified immunity as to the first cause of action and as to the state discretionary act exception on the eighth cause of action in any analysis involving the use of excessive force especially qualified immunity we have to first see whether there was a constitutional violation and sometimes there's an overlap over the between the analysis of whether or not there is a constitutional violation or whether there is a use of excessive force whether we discussed that excessive force has deadly or non deadly is not necessarily germ ain't the fact remains that any excessive force in violation of the fourth amendment is a constitutional violation when an officer uses more force than i reasonable to be employed in that a circumstance there is a constitutional violation graeme vs connor provides us the framework for determining whether or not there's been the use of excessive force in an inn and that was a constitutional violation the first analysis the first step although not necessarily the most important one is the severity of the crime mr davis in this particular case was stopped by casino personnel whether it's on their a vagrant sees statute trespassing statute or otherwise that crime would have been a misdemeanor he was  arrested for obstructing a police officer which in the vatican if you do not use deadly force or if you're not armed is likewise a misdemeanor so when we look at the severity of the crime that he was potentially going to be charged with and the crime that he was actually charged with where looking at a misdemeanor and the question here is whether in light of that particular crime the officers immediate threat to the safety of the officer and others and i believe that's the more important one this is a videotape that was presented to the court below there's a transcript nowhere in that videotape at least in the portion where mr davis is in the security holding tact is there any indication that miss the date is posed an immediate threat to the safety of the officer and anyone else he was handcuffed he was not grabbing the office's gun as a matter of fact when the officer was conducting a pat down search he he told the internal affairs detectives that he was satisfied vote for that officer miller turned davis over and punched him in the face and that's correct but that's later on while he was in the security holding tank and i still think that part summary judgment was inappropriate absolutely the reason that summary judgment was inappropriate is is because when you take the facts in the light most favorable to the nonmoving party and you have m testimony mr davis's testimony then you have to look at that and say well did a reasonable officer in those particular circumstances believe that his conduct was constitutionally permissible and the answer to that is is clearly no and it it's supported in the record because internal of said as themselves  for immunity not only for officers but any state employees engaged in discretionary acts the concern i have about the extension of that is that at least the nevada supreme court that is a discretionary act when you decide to use the handcuffs in a matter that causes injury that that is not something that should be considered discretionary  and if i put it in this perspective if when it comes to police officers it would make no sense that an officer could be considered  the constitutional rights of an individual by using excessive force under federal law yet somehow that very conduct is considered discretionary under state law and he's from suit or liability in effect taking that argument to its extreme it is saying that whenever somebody an officer of decides to use excessive force which is constitutionally permissible he can only be sued under federal law but never on the state law i don't think that's the intent between the nevada discretionary versus ministerial on finding office a liable for battery when the jury instruction that was given is that an officer may be liable for the full battery when he uses more force than is reasonabl necessary to effect a lawful arrest so there's precedent in the others before them out of supreme court that officers are not immune from from a battery claim in the event that they use more force than is necessary which sort of would make sense because if the force that you're using is constitutionally permissible why should you be protected under the quote discretionary good afternoon my name is lisa cinelli and i represent officer david miller in this litigation although i'm going to focus on the qualified immunity issues because i believe that that's the most significant issue before you today there were a number of side issues that were raised the officer turned them over when he was in handcuffs and punched them in the face and caused the injuries well with respect to the pension first of all i don't believe that the testimony is that he actually was turned over it  testimony was that he was on the floor that he continued to struggle he was kicking and spitting at the officer and it was at that point that the officer delivered a short jab to mr davis face and at that point in time we have  what we would submit to you is that if first and foremost that you when you look at the issue of excessive force you have to look at under the gram factors basically everything that's taking place at the time that this that this punch took place and in this countering here we have a situation where he's trying to take mr davis into custody he's trying to identify mr de this and this or davis is actively and forcefully resisting him over a period of time and this punch undisputed issue of fact here because mr davis has testified under oath that even then he continued to resist we also have the benefit of the videotape which was submitted to the court that shows him kicking and spitting at officer miller while handcuffed on the ground so that they at the active resistance i mean there's no one there's no one that's testified that he was no longer resisting there's no one that's testified that he was offering absolutely no resistance to mr officer miller's lawful attends to identify him and to take him to jail so officer miller at that point again it's almost not unlike the sheriff in the south in the cat's case in the sense that although in hindsight maybe it was unnecessary in hindsight maybe there was something else that he could have done by the same token it didn't cause mr davis any injury it didn't even leave a mark on his face and mr davis at that point did see resistance and it was only then after the job was delivered that officer miller was able to effect the identification that he was trying to make and to switch out the handcuffs so that he could take mr davis to jail which was his objective before the entire struggle a and with respect to mr dion's testimony you first of all we have to separate out the cause the consequence of that which is the injury i think that they counsel in large part is trying to work that ackwards from the fact that we that deposition moments where he's trying to describe an activity and using his body to describe it but essentially what he's talking about is that as officer miller is taking him into the hallway officer miller is pushing on him and he's pulling and again you know what we're and this is all part of the continuum that the activity that took place immediately before in the security office where he is frankly day this actually testifies that they were struggling that they were engaged tussle where one was pulling the other was pushing and that this momentum carried itself out into the hallway even taking the facts in the light most favorable to mr davis and taking history dying at his word the out but but i but i do believe that there has to be enough specificity so that the police officer is clearly on notice that when he engages in that activity that that activity is in and of itself unlawful and that activity that he engaged again i will remind the court happened in the heat of the moment so to speak while he has an actively resisting subject that he is trying to identify so he was already under arrest that he can take into custody he was saying that once you get one should find yourself in the you know the hazy borders so to speak between what is clearly excessive and what is acceptable force then you know the court the court has to give the benefit of the doubt or the deference to the police nightstick and whacks him a few times breaks his head you know without any justification is there immunity for that lender and you're our current supreme court cases there would be a strong argument that there would in fact of what i would say with that is and that was one of the issues that i was going to hit in the beginning of my argument which is that i don't even believe that this that this argument relating to the battery cause properly before the court they did not oppose our summary judgment motion on the basis of the battery cause of action there was not a we didn't use their summary judgment and then they countermove for summary judgment they filed their own they opposed the motion only with respect to the qualified immunity issue and said oral argument they did not even address the battery issue at all so we believe that it's basically an appropriate for them to now come here and try to take those so i for whatever reason they decided to submit that under seal to i guess protect his medical privacy since all of those documents would be considered a public record but the other documents the our office mission and the reply brief that was summary judgment on all of the causes of action against officer miller we have fully briefed the issue of the state law battery claim in our in our brief before you and aside from the statutory munity issues we offered several racially motivated that that would show some level of intent on the part of the police officer however that issue has there's a subtext to that in the pleadings but that issue was never fleshed out three and he would either say that you know he wasn't sure he didn't remember or he would say that you know perhaps he didn't mean anything by it and similarly there is no evidence on the videotape in the security office or in the hallway which  evidence or some type that you know systemic discrimination type evidence in order for him to make to have enough of the material issue of fact that before the court that's that would be my that would be my take on that was mr davis deposition mr davis and that their position we calls that through the whole incident that it was the officer that had control over him counsel likes to paint that there was a toggle and there was a struggle back and forth and his pages of his deposition on pages one hundred twenty two and one hundred twenty five just says that what he recalls is that and he's out of control the officer is in control there under the fourth amendment to say that without exaggerating without without being overly dramatic to use an individual's head as a battering ram as this officer did under the guise of gaining control especially when the evidence is conflicting before the judge it was inappropriate to grant summary judgment the jury should decide to that extent as to the constitutional violation and as to the liability of the officer  tape and looking at the depositions whether or not there was a racial animus that is something that the jury during that at this point in the case my question well i think that's something for we can read the record to see whether it's a claim to support it but are you are you asserting a racial motivation at this point at this point least on appeal were not i think it's part of the submit it thanks