it took a doctrine intended to apply only in extreme cases and applied it to garden variety credibility issues and then it also extended that doctrine by applying it to a nonparty fact witness now our position on this appeal is twofold st of all this court implied in footnote four of the fosamax products case that geoffrey's does not apply to nonparty fact witnesses as opposed to and we submit that the court should make what was implicit in fosamax products explicit that if jefferies can be applied to nonparty fact witnesses then summary judgment basically will turn into a bench trial before the jury trial where why should fac witnesses be given more leeway than an expert witnesses to create sham dispute a fact well in have an expert that contradicted his own deposition and the contradicted his own prior report and a report an expert report is presumably made after the expert has done a thorough examination of the facts and reviewed them according to his expertise his or her expertise and therefore an expert report is a considered formal statement and then when an expert just makes an affidavit that completely contradicts that that it's a sham in a way that a prior inconsistent statement by a fact witness outside the context of this lawsuit is not we would the same is not on it geoffrey's could never apply to a  party fact witness you could have a situation where someone saying something so fanciful that it would be crazy to say that this would be possible so that the i understand your argument and in fact obviously this doesn't fall into that category when you  jeffords could never possibly apply to a rd party fact witness i think with then require a court not to say that this is so fanciful it can't be a basis for creating an issue of fact right well in that extreme case not not in more than just some inconsistency but in an extreme case where it's so fanciful you know no one can credit it i mean i did suggest in the reply brief if the a fact witness makes a statement that is physically impossible the faster than light trip to build use i believe was the example i used and i think that a court could be justified in discrediting that but here where the court's disagreement with the vega affidavit was basically that the affidavit did not comport with the way the court believed that the world worked that's not something extreme enough to invoke geoffrey's so that's really the nd part of our argument is that even if you have freeze does apply to rd party fact witnesses it should not apply here and i can i move you because he had been assaulted the night before that mcclaren identified processes as the shooter know he he was there there's no dispute about any of that but mclaurin was the guy in the white shirt he was the guy who missed of a get originally identified as standing in the very doorway where the shots came from he the police abuse surveillance video they knew he was the guy in the white s shooting took place even if you even invented mr mcmahon as opposed to being the shooter there's probable cause to be that he was involved in this incident if almost things were before the police right well what this court held in the th case is the things such as presence in motive by themselves are quote to gossamer to establish probable cause at least to eliminate issues of fact as the probable cause presents man and a witness right well you have a witness who is the basically the shooter  and who the police know through surveillance video is the guy is very likely to be the shooter so i would submit as in the shower a case as in the do for case that the fact that an identification has been made does not in and of itself create probable cause where there are known to the police multiple factors that cast doubt on the veracity of the identifier and incident i watched that video and you klein is restrained there is one officer who appears to with his knee four times in his head make a motion towards his head and you hear the inmate saying stop kicking him in the head and the camera moves away yes so my question he was of all those individuals who are charged who are named in that particular excessive force claim do you have you identified who that particular officer is who was who who was near his head and his knee was moving toward his head multiple times unfortunately the plaintiffs could not identify exactly which officer that was but we are submitting as argued in the briefs that it was it's an acting in concert situation and it's also a situation where all the officers present as was held in the staff and skee case had a duty to intervene and has happened so quick i mean your client in that video was clearly they needed to restrain him yes so up to that point he clearly needed be restrained at that point he was restrained the other officers would have had no idea that that that particular officer was going to suddenly you know happen about you  know nd start moving his knee toward his head four times with no time to intervene that was it was just going to innes but it was immediate and i don't know how the jury could decide which officer did that happen jury figure out which of those like six officers there if the jury would find that it there is a municipal policy which we also contend there's an issue of fact concerning then it wouldn't matter which of them get it because if there's a monorail claim the person the officer that inflicted the blow does not have to be a prison contraband i don't recall whether in the record he explicitly admitted that the contraband was a blade as opposed to some other item and again if i can just briefly return to the issue of probable cause i just want to point out that in the due process claim probable cause is not a defense that so long as the plaintiff was arrested and incarcerated based on fabricated evidence that due process claim will lie and if they get affidavit is considered then summary judgment on that claim was clearly in error regardless of whether there was probable cause thank you i'll reserve for rebuttal thank you separate due process claim for the fabrication whether or not malicious prosecution claim is different but wouldn't he still if in fact was a fabrication of this statement would need to have a due process claim if there was a tribal issue right so if someone puts in affidavit that that's not a sham affidavit situation if the person was not proposed at the trial he never he refused to identify mr frost at the trial so there is no sworn statement either within this case  discovery or even in the criminal case a sworn statement or you could say this is a sham he's testified differently right i mean when you're lying on the say that this is a sham he's saying that he was coerced what i would say is number one when he gave this statement to the police i they had the ballistics evidence he reached out to them and that's under sputum because he wanted to provide the he wanted to give them information to catch a break on a new arrest the only information he was going to provide was the identity of the shooter he makes no attempt to attempt to assert what else he was going to information right but those are but you know when the police st initially interviewed everyone everyone at the scene said oh we didn't see who who fired the shots or offhand statements when he identified for us the shooter again he in his defense attorney contacted the  initial set that that statement to the police wasn't taken let's add a deposition was under oath but i would submit that the circumstances surrounding that statement were just like jeffries which is supposed to be this really narrow doctrine that we've used for parties to a non party witness to say that if you say something to the police and then say later that it was a core statement geoffrey's what a pioneer you are as a matter of law not credible i mean that's kind of a that's that would be quite holding i think that in this case the facts support that whole thing again not only did he reach out number one number two he claimed he was coerced in the presence of his prop of a prosecutor and a defense attorney so that that which would lead to a conclusion that both the prosecution the defense attorney condon permitted a detective to falsely identify an innocent man in a murder which is highly unlikely if not completely improbable number two why i let a jury decide that because it's that fact connected with the fact that he reached that there's zero substantiation in this case and any police misconduct you know in jeffrey's you had jeffries's statement of police misconduct supported by other evidence supported by the statement by his mother that he had reported to her about the police misconduct supported by the statement of the mother of his children as well certain inference to be drawn from documentary evidence and in jeffrey's the district court disregarded that position testimony and which this court affirmed in this case we're talking about a situation where know misbehaved in this case when one when they go appeared before the jury at the criminal trial while he refused to answer many of the questions he didn't get up there and say the police course me so there's there's zero shooting frost is you know arrested within a week of vegas interview i don't think so your own timeline of the facts was very important i think that the police vega reached out to the police because submit was the critical piece of evidence in this case john mclaurin gave context in detail to the shooting that night he said i was with frost we were in a stairwell of a building we were smoking marijuana frost saw some guys that had jumped in the night before he fired into the crowd and we ran away i saw him put a silver gun into his waistband he then says i asked for us why i did it and for us told me that he did it at that hospital is his friend the night before so it wasn't as if the police  image shelley stop kicking in the head and the camera moves away so why wouldn't it be great to his excessive force in fact he was he was need him in the head multiple times after he was on the ground is that he's he's definitely restrained at that point to be frank i don't remember the exact you know serves as events but of course i'll take you absolutely at your word i would say that in that instance from what i remember the appellant was resisting arrest for a very long time he was even on top of one of the officers in about forty seconds a matter how long he was resisting if he is in fact restrained obviously you can't kick someone or nice someone yes it is more times that the the issue regarding the officer is is an important issue but his point is that if there is a now claim where there's multiple instances you witness and if know who that particular officer was right yes judge i would argue there is no viable and no claim of the other incident that this this so called spitting or threatening to spit because it's undisputed he didn't spin at the officer he says that captain jamaat took him to the ground which i think the captain admitted to because he said he didn't want to spit on him slammed his face to the ground the other officer knelt on him they kicked him in the ribs and then dragged him on the ground in shackles so if that's all true why would that be excessive force for a threat to spit which is what we have to assume that there was a threat although they would i think you would argue that we can even assume that because he said i don't recall even threatening to spit but even assuming we we said it was a threat to smith would not be excessive force i don't think so and i think not only did he not only do nothing there's a general dispute that he didn't fact that there is no general to be that he threatened spit but it also understood that he became combative that he turned his body toward the officer that he was and that's testimony provided by captain gemma that is not refuted we cannot refute that point if doesn't say that he resisted in any way you know he became combative and he turned his body toward the officer and he says th that's what they say and he said he was being pulled in shackles and he was sort of you know not walking as fast they wanted and he one consider resisting but he was sort of you know dragging a little bit more in any event i think that the officers would at least be  qualified immunity i don't think that you know they're required to let him spin it let him spit on them i don't think they're required to let him he said someone shoots he said he said i should speak why isn't that just a statement of this was i mean what if he said someone should spit on you or you deserve to be spent on would that be enough someone should spit on you i think that's different saying i should spit in your face i think is is is a statement that suggests you know i'm going to spit in your i'm going to spit in your face the next time you do something i don't like or the moment i get a little more frustrated than i am now i think it does constitute a legitimate threat i think the officers don't have to stand there and wait for him to spit before they u tilize force in this case they took him to the ground they restrained him i think that even if they did and dragging him to the next location as as he alleged you know reasonable office could disagree on whether or not that constituted excessive force this is a dangerous  allegations of excessive force thank you briefly around or with respect to the issue of mr vega contacting the detectives even if we would assume he was there to identify the shooter his previous statement had identified the person in the doorway not not specifically he didn't say that person was the shooter yet but he said the person in the doorway is the one in the white t shirt so for all we know he was coming there right and handing to identify mclaurin until detectives mickey appointed to frost picture that there's nothing inconsistent about him contacting the detectives and then being coerced or called to provide information other than what he had intended to provide as for the prosecutor in the defen attorney being there i think that we can take notice that in the real world at a profit session the prosecutor in the defense attorney in the witness is attorney around the same side that high pressure tactics come  moments in proffer sessions are far from own heard of and that while this presents a credibility issue for the city to argue to the jury it is nothing like  was not only contrary to twelve i believe prior statements of he is including a plea colloquy but it was also contrary to all the medical evidence whereas here the circumstances before and after mr vegas statement starting st of all with the identification of the white t shirt mclaurin in the door and then later when trial came he did not he refused to identify mr frost i think those i don't believe there is any such evidence the police may very well have believed that frost was the shooter but didn't feel they had enough to arrest him yet and then once they get kamen the case kicked into high gear and within a week after that they have brought in mclaurin gotten a confirmatory identification or you know what they believe to be confirmatory and set in motion the criminal case so i would submit again there's an issue for a jury as to whether this is a causative factor for the due process claim and finally going to the excessive force i think judge katzman correctly pointed out there's a difference between i should spin and i will spit and i think that even counsel agreed that maybe that now and he might speed at some later time rather than being an immediate threat the spit and in addition i think that if you know what mr frost said was i don't recall saying that and then he said maybe if i was mad i did i think it's for the jury to to look at the surrounding circumstances and decide whether he was mad and even if we were to assume that he did make that statement i think you know a cake down not only a takedown but slamming kicking dragon and joking and the only part that the defendants dispute is the joking would constitute excessive force for a verbal threat where he's not even he's not even taking in his breath he's not even professionally preparing to spit and there's no and he disputes being combative or resisting at that point so i would submit that summary judgment in this case was in error and should be reverse