those officers have been deprived of their right to have the facts of this case and their conduct measured against the elements of the crimes with which mr johnson must charge and it isn't determination of whether any reasonable officer or any competent officer could conclude that those offenses had been conducted that was not done by the district court in this case and this court must examine the record mr johnson's admissions and the in my view the most ira clearly defined standard of review of the videotapes you assert time and time again in the brief that they're absolutely clear as to the relevant  circumstances and that's completely contrary to obviously your opposing counsel race but also the district court's decision opinion your honor under what do we do with that do we can we just doesn't establish the supreme court on to do in free to frequently does not clearly establish a standard review for the next hundred cases your honor i believe that one of the parties version of facts is blatantly contradicted and so that would be the standard view that used the court need not assume for the purposes of summary judgment that that version of facts is part of the record  i would concede that not every aspect of the videotape is one hundred percent clear but i think what what is very clear if you found an appellate decision that meaningfully analyzes what blatantly contradicted means one of the poet court is looking at a video or a document for them your honor i think there's a lot of cases that say when we're looking at documents you know why why are we any different than the district court i think a video that a stronger assertion with respect to a document frankly than a video you are not what i would say in this case i think it's  extremely clear and this case how it could be applied for instance in the excessive force claim regarding the tasing outside of the bar mr johnson's testimony was that he sat down on the planter was immediately tase and fell to the ground if you look at the videotape and i have been unclear stills and part of my done that is blatantly contradicted by the videotape he clearly was not immediately tase and fell to the ground you can see him stand up turn around and run off camera and so the court must do you think you can see on the video that he runs away set running the way the officers are approaching him to to try to arrest him and he stands up and runs away we know that well if you look at the officer's testimony here they told him i'm under arrest you're under arrest so but the point is is that he says that he sat down with immediately taste in the back and fell down but what you're saying is if the video contradicts his testimony then the officers are to be believed you know doesn't that doesn't follow you know i your honor i would say because the video doesn't if the video doesn't show what the officers  and there could still be a genuine disputed fact even though johnson's testimony is inaccurate because it's still not clear what happened but i have some fact finders going to have to decide what johnson says one thing the video doesn't  say you then do not except for the purposes of summary judgment the blatantly contradicted part ok there's nothing in the video that blatantly contradicts the officers testimony so you're left with the officers testimony whether or not the video shows all of the officers tell you or not i mean that they on the qualified immunity what's the one wonders of wonders a fact dispute preclude appellate review at this time of qualified immunity what you're saying is wrong honor that is that if the officers tell a story you can't the court can't deny summary judgment just hoping on the belief that jury would disbelief the officers if that if the only admissible evidence before the court is the officers statement without any good cause i wasn't fleeing and so forth well what no mr johnson says is that he would immediately sat down he was tasty fell to the ground and then he doesn't remember anything else until he was handcuffed on the side so there is no admissible testimony from his side of the table about that what about all the other people who are missing we have to exclude those and just believe the officer mr shoop is the only other witness the plaintiff points to to support his claim that the mr ships testimony is both blatantly disregarded or blatantly contradicted by the videotape if i could direct the court's attention though i don't want to lose my time the issue of probable cause i think is completely central to this case if any reasonable officer can now address to the late i'm sorry your honor addressed the delay with respect to probable cause they fifteen minutes so the the standard for probable cause is objective reasonable lesson of the fourth amendment to officers subjective intent has no bearing on whether there was a didn't you understand that my understanding of the significance of the delay is that you have a a a patron a customer who for one reason or another ignores or or or disobeyed a the bouncers instruction it's after hours you have to leave the officer is called in to  take over as opposed to having a altercation between private citizens there and the officer officers get him out the door and fifteen minutes later we have the altercation at the planner and now the argument is well there was probable cause to arrest him when he wouldn't go in the door in the first place and i say that's not a that's not objective lee reasonable in  this situation ninety five times out of a hundred one would hope that the officers would successfully get the patron out the door as instead of having to arrest and so if if even if it took gen later and they and they had been walking toward that the united the viking stadium the officer still could have said you know you would you refuse my command to leave you're under arrest for for what happened back at seven the elements of the elements what the court will look at at because it's an issue qualified immunity all the elements i want to case that addresses this is the lady for i'm explaining why i'm going to cite a minnesota case because this is whether at that officer could believe any reason the officer could believe that he could have arrested mr johnson at that time stately brag i just do you have a case with the delay factor where the analysis of the object of reasonableness discusses the fact that the officer chose chose to peacefully eliminate the trespass and refusal to leave and then a lot of a significant amount of time later decided i'm going to arrest you for that the case that i rely on is that it doesn't matter if the if the happened mr johnson was asked to leave he refused to leave the officers asked him to leave he refused to leave if you look at the elements of trespass those elements have been satisfied at that time there is arguable probable cause actual probable cause that he committed have to try to work this out if the bar if the doorman says you have to go you have to go this is this court is not for dealing with whether mr webster the doorman was wrong about but having that late at once he was told he couldn't stay in there and wait for his car anymore that license has been revoked and so he doesn't have a claim of right of any kind to be on the premises just like the casino pays so i'm running out of time in reserve the last minute for it please the court my name is david coyle i represent tom johnson capelli in this matter respectfully asked this court to affirm the district court's order denying summary judge this case is not about officers having to make split second decisions in high pressure situation is the case but officers arresting an individual without conducting any sort of investigation and only after the individual had taken a photo of one of the officers and asked his name in response force had been used against him could you address what posing counsel started out with which is the blatant contradicted portion how do you respond to the assertion that the videotape blatantly contradicts what mr johnson testified to because i  find that portion of the video quite difficult to discern and figure out exactly what happened yes i agree your honor ultimately we find the video is ambiguous you can't see the full picture of what's happening  was the moment johnson claimed as opposed to the officers there's aaron shoop there's also mr coleman mr coleman was an employee of seven and he also testified that the time on the video which he believed mr johnson was being taste was the same time that johnson claimed he was being tasered i think they're talking about an immediate tasing never got up i mean what how do you how do you address those specific portions of mr johnson's testimony in conjunction with the video you're i think it is the video does not blatantly contradict johnson's testimony from the video it's impossible to tell at that moment is he being tasered or as they claim is he running away just the video you know once again it's not a matter of you know you see it in july get it and what do you think it's whether or not it blatantly contradicts the view from one party and his judg found it did not in fact he thought on the video supportive of johnson's position so needless to say the price hardly dispute what happened in this incident but what is on his speech is that mr johnson was to leave when he was told to leave and the elements of trespass were then satisfied why didn't they have argued least arguable probable cause to seize him you know i don't believe that they had our go probable cause to seize him since we probable cause is a legal issue and if the facts are undisputed that the bouncer told him to leave and he refused to leave why isn't that arguable probable cause that he committed trespass yes you're young you're right it is a legal issue but there's underlying facts that go into that analysis in terms of what are the predicate facts necessary to make that analysis and here point to judge magazine and in viewing the evidence most able to mr johnson there is a fact issue on whether or not he refused to leave the facts show that webster was talking to mr johnson and mr johnson explained that he was there waiting for valet and had his valet ticket and club policy it you are allowed to stay inside the club in that scenario after mr johnson explained this to webster and explained that he was allowed to stay in because his he was not a dress code and had been with the owner in prior occasions wearing the same clothes webster walked away furthermore there's a fact issue on what to what degree arguing with the bouncer at that point he saying no i don't have to leave but that's not up to him i mean maybe he can be acquitted on that basis but if the officers know that the staff has told told them that he was supposed to leave and he won't why isn't that argument probable cause you know in this case there's a fact issue on whether or not the officers knew  dispute over what what he said that that he he summoned as as his routine the police officers who were who were present for the purpose of dealing with people who wouldn't leave and webster then disengage is to avoid a private all or cage what's what's the where's the dispute this punitive fact is that the officers dealings with johnson being that  yes i think that there's a few fact disputes to point out the first let's start with the one you asserted there's a dispute as to why as as to why the officers in gauge with johnson at all and testified that webster said he needs to leave mr johnson was in that same vicinity did not hear that there's no evidence to suggest that you didn't now you're the officers anyway i think you've said what you have to say about it unless you want to add anything and sure it goes i could add just a bit more so it's not that webster approached him and said johnson has is refusing to leave and johnson doesn't have a right to be here and he's trust passing and i'd like you to arrest him or i'd like you to remove him from the club he simply went up to mccarver and said he needs to leave or what's in a sort of why couldn't a reasonable officer take that  shorthand for the rest of the litany that you just listed or maybe that's a rhetorical question but my follow up question is if there was so i know you don't agree but assume there was then to arrest him for trespassing do you have a case that says the officers have to do the arrest immediately or if they wait fifteen minutes there's no probable cause anymore no you are not have a case have a case on this is that ok so why why wasn't there probable cause to arrest him outside the planner fifteen minutes later if there was inside it at the time of the incident before you go outside i think two points one the officers were inside the and there's a fact dispute on are they acting as officers or as bouncers essentially under johnson version of events they're acting as a bouncers excluding johnson from the club at that point there's no trust passing just a geisha and that's going on officers presence and the officer effects a remedy other than a rest and then later arrests what what is what is the what is the legal premise to say that the the the dissipated probable cause still still persists and justifies a later arrest i'm not aware of any point just once again that would be object when reasonable at that point to arrest after such a long period of time has elapsed well fifteen minutes and still on them on the public premises  you know the sidewalk extended premises of seven correct your honor but this wasn't any sort of case of hot pursuit or anything the officers were inside kind of  kind of changing topics are somewhat tangentially related appoint the court to the kewl decision from this court dealing with the fact that officers have a duty to a reasonable investigation that didn't happen here there's nothing in the record to suggest that mccarver lawyers earn went back and interviewed webster to get a better account of whether or not he did have a claim of right to be in the club whether or not webster wanted him to be arrested for trespassing whether he was barred from the club mr johnson made mention that he had been in the club on previous occasions with the actual owner of the club and the owner of the club allowed him to be in the club a lo through the end of the incident including when johnson is taste and when it's the evidence about any interaction between the barber and him after mr johnson leaves the club there's nothing that i'm aware of in the record surely nothing as a with regard to investigation of mccarver law or stern asking webster any sort of questions or getting their side of the story as to what happened their side the story as to what the conversation between mr johnson and mr webster involved there's nothing further on the false arrest claims or move to the excessive force claims and the test here of course is whether or not subjectively reasonable under the particular circumstances and i think it's important here to test whether it's clearly established that it's subjectively unreasonable yes you're on for the qualified immunity analysis correct which you cited was the first step the constitutional question you're correct yes or so looking at the tasing episode i think it's important to consider the facts either from judge as judge magnussen found them or in the light most favorable to mr johnson and these are the facts related to the tasing after mccarver swatted the phone out of johnson sand johnson stood up been it over true treat his phone from the ground and sat down on the planter again almost the video confirms that mr johnson stood up and picked up his phone and sat back down and then at that point that's where the video is ambiguous and surely doesn't blatantly contradict mr johnson's testimony that he was taser that point  doing this from the officers perspective understanding it summary judgment stage that that's only part of the inquiry but from the officers perspective what is the relevance of mr johnson's i didn't see the district court it there's nothing to suggest however though that he was threatening i think the leaping up is that you going after he ear you're referring to after leaping up after the fall was not from a stand yes but once he stood up he bent over picked it up and sat back down on the planter not making any further threatening movements or gestures at that point and so at  person being confronted is clearly relevant size and proximity and possible weapons and so forth all of that has to be taken into account and here the size is dramatic in different opinions however it's often included in the context of their behavior and here once again if you view the evidence in the light most favorable to johnson as you're required to do it he's not threatening at that point and that any sort of subjective view would be contradicted by the record and view in the light most favorable to johnson thanks very much  your honors i just want to touch on a few points that counsel made regarding if there is a question about whether mr johnson declined to leave its and his complaint multiple times that he declined to leave there's no question about that regarding the fifteen minute delay they could have any officer could have arrested mr johnson up to the extent of the stache limitations for trespass and i think it's in the brief i think it's a least a year might be three years fifteen minutes they're still probable cause if there's probable cause objectively they could have arrested him and that does not offend the fourth amendment regarding the question that judge kelly had about whether officer mccarver spoke with the doorman after mr johnson left  inside of seven the case law says that an officer must do more investigation if it would have clearly exonerated the plane you know the defined in the criminal case this would not the the license to be inside