know please the courts stephen day for i believe the issue before the court today is what kind of notice these officers received before the incident in question now where they are noticed that the taking down an individual who had surrendered was not a flight risk was not posing a threat to the officers and to that under those circumstances a front takedown would be a violation of the fourth amendment and would be excessive us a case that's got something with specificity with respect to the take down what's your best case like in horn versus city of orange where the individual is unarmed untouched anyone was generally obeying officer instructions  he had been picked up because he was a spy blankenhorn the officers gang tackled and repeatedly punch somebody for trespassing in a mall here your guy is still in an airplane severity of the crime yes but we're talking about an individual who has surrendered well what he thought we've all watched the video so right he's coming out of the airplane and they're saying get down get down get on the ground he's got something in his hand and one of the officers takes him and puts him down on the ground groet under those circumstances i guess i am let's assume a constitutional violation i'm looking at a clearly established problem i'm having trouble with that kind of crime if you were a bank robber under those circumstances and surrendering would they be able to put him on the ground no not a few surrendered they can't put anybody on the ground they if he surrendered and if he's following offshore instructions know they cannot put him on the ground we have a case here where they suspected it so to give me the case that says if you're following officer instructions you can't be put on the ground  i can only refer to cases where they are following officer instructions and shooting a beanbag at them again tackling the second to dog on them those are all instances of excessive force i cannot give you a case where someone has stolen an airplane or stolen a vehicle where he has surrendered and he's obedient to officer commands where the court concluded that's taking the facts in the light most favorable to your client as we have to i'm not sure that he really was surrendering in a b d and the let's assume that's true because we're on the summary judgment stage and i think there could be a fact issue about that but i'm stumped trying again because we keep getting reimbursed by the supreme court so i'm trying to but i think the case judge wardlow was discussing was one that involves some violence after somebody was taken down and so my question is do you have a different case against officer olson and you have against officer first officer whoever was favorable to your client looking at it from that perspective he was i mean granted his hands weren't completely up but he was following the officers orders and then  hands and raise show us hands they were shoulder height i mean was he reaching for the sky know they were shoulder height when he was taken down he was in the process of going to his niece he was an he had just been could have put into the ground to search him could they not you were concerned today about whether or not these officers had notice the what the what i'm asking a different question your answer different when i ask you let's assume that the put down on the ground had been more gentle than it was the officer said get down on the ground we need to search you and they put him down on the ground that would not be excessive force would it agree and if so what you're claiming isn't the way they put him down on the ground was excessive force the way they put him down on the ground was excessive force in light of the fact that he had surrendered and he was followed by no bob saying even if he had surrendered they would be entitle to put him on the ground to search and what not i gree with i agree with you so your real your real claim is that the way they put him on the ground violated the fourth amendment in light of what was going on at the time well what about contacts just trying to explore but what about contacts other than the way they put him on the ground i mean look backwards to what had happened what he'd been doing the concerns and suspicions that have been raised when you when a person comes off of a plane he's been doing touch ingalls he's stolen a plane they don't know what they're confronting and sure enough they're going to tell the raises hands and they looking to see whether he has a weapon but they really don't know what's behind it they don't know what he might have on him right now so would they not be justified even though they told the raises hands when he got close enough to take him down to make sure that there was no chance that he could somehow otherwise it cost them our go to look he's under the influence correct and he's under the influence of the usual shot in the airplane i know he's not just doing innocent things i mean so he's shutting the airplane down and it takes a quite a while to come out after the door gets open there's that had to connect factor into the officers concerned about who they're dealing with at this point yeah i think all those things matter but but i think what so what i'm looking for clearly established law i have difficulty on the take down using blanket horn who is a mall trespasser as the as the paradigm because this guy's doing something worse than trespassing in a mall isn't it this part the airplane at the time of the you have to look at the crime committed the severity of the crime committed but you also have to focus on and there's been a complete lack of focus on what is going on at the time of the takedown he surrendered if the video shows nothing else it shows that he surrendered hands up he's compliant with officer commands the reason why he's so vulnerable when they take him down is that officers just asked him to get on his knees why would you give an instruction to a suspect to get on his knees if you have no intention and if your  surrendered the primary issue with the takedown the reason the takedown was performed was because mr whittle still had an object in his hand that he was not surrendering what officer not some testified to it was he made a decision to go hands on before he'd exit the plane going hands on means he's going to handcuff me he's going to touch him he did not make the decision to take him to the ground until he said his feet were on the tarmac and he had that item in his hands he didn't know what the blood legend was it would end up being a radio headset so it's a dark object that officer nuts when describing a step at a deposition as being a blunt it looks it looks like a blunt object to him so the issue then is whether it's reasonable to perform a routine front takedown on an individual who is taking a long time to get out of a plane because the time in the plane is important because the officers don't know what he's doing from that minute half which could be it and also they don't know if there's anyone else in the airplane so assume just for purposes of discussion that and the kick if the kick was on the other side at least you could say was opening up but he just just looks like he just takes a shot at this guy and judge judge wardlaw found a case so tell me why tell me why nice guy no i don't understand why they'd want to spread his legs but when he didn't he gets a kick he gets a kick on the outside not in the inside to spread them so as if the officer also had stepped between him and kicked his legs open i don't understand the argument but he just what do we know with you know you claimed injuries from the takedown did he not claim an injury from the kid no when in his deposition he said he didn't even know he had been kicked until he saw the video that the you know the kick didn't register with him he was not aware of it he didn't know what had happened and there were no physical injuries in the lawsuit during discovery complaints claim of injury brutality injuries or from the takedown all of the injuries are to the head correct the injuries were a complaint that he he suffer and then his allegation is that it increases severely of his preexisting seizures and weddle said he was he was intoxicated he didn't remember anything that occurred when the incident there i correct he he stated several times that he has some vague memories but none of even the officers being present pointing guns at him yelling commands so he didn't really offer any factual evidence in this case you know the video is what he rested on his he did say that he had no knowledge or no memory of the  position on the on the kick isn't that is it that it may have been excessive but he suffered no in he didn't offer any evidence of injury well i think the injury factor goes into it a now so let's assume for a moment kate a police officer gratuitously kicks me ok during an illegal arrest so i'm not going to you know he doesn't want to just up on street got a legal arrest and he doesn't like me so he kicks me but it doesn't asking would you basically saying is this wisdom in a miss yes that would be the primary focus of that argument that sometimes you have things that happen in saucier versus katz says that that sometimes you have a use of force that later looks bad argument is even if you wasn't justified in the totality of the circumstances it's who's close enough for government work and to be candid i think the cases are split on that i think you have cases that focus on the de minimus of an injury and they let it go and you have other was you know and what what occurred with respect to officer also i don't think there's enough and the reason being is is again the de minimus argument that he didn't suffer any injuries he didn't complain about it said i didn't know that happened to i watched the video and so i don't know that that gets to a jury because in your constitutional ising every you know minor type of force i think that if you get into that you know there's lots of cases where strikes and punches that perhaps in hindsight were the most well thought out but they don't always go a perfectly appropriate takedown i just want to focus separately on olson tell me why that kick is a constitutional violation well if you're concerned if if it's to courts concerned that having hands raised strike instructions isn't enough certainly being handcuffed and sitting on the ground he was no threat to anyone and he it's fair i mean i he he probably didn't extend his leg because concept let's assume they could shouldn't have done it it's excessive force but you haven't showed any separate injury from it is that in your case the fact that he was battered and wasn't hospitalized or  contusion i think i don't think he can you can better somebody when they've been handcuffed and i don't think you have to shave and i don't think you have to shoulder examine are just and i don't want to extend this to your colleague says in the absence