in the case this appeal comes up on the trial judges granted judgment as a matter of law on the issue of qualified immunity in an in a ninety three case after a jury i'm not doing that the trial judge going to return the jury and grant that your motion only in front of the governing law there can be but one reasonable conclusion as to the verdict and that's standard g m also that's right and the court below did  officer foster did not and nobody has ever said except this judge that that was the reason he arrested her the reason is active strasser that created probable cause to arrest for was a battery under his definition which is an unwarranted un justifiable battery in a manner that is rude insolence and angry those are the instructions that were given to the jury the jury found that there was no probable cause necessarily finding that the touching was not offense with them all is all about you look at the uncontested facts and there was a battery i mean if you admit your client touched the officer you know as  insignificant as that might be in a larger world legally that becomes a battery and that creates probable cause to or to arrest for battery and he didn't arrest her for that that's the point i'm trying to make what difference does that make if there's an objective basis to a arrested her because she shot him and here is where the trial judge ignored the foundational facts and ignored the jury's verdict and specifically ignored the evidence the witnesses except officer pastor that there was no shoving he made a credibility determination that there was a shoving and that officer pastor believed that there had been a battery and again it's not only usurping the couper function of the jury which is credibility determinations but  also wrong on the legal issue of qualified immunity because in both areas when the judge overturns the claim for excessive force or he's referring to all of us officer foster believed he was dealing with a person who was intoxicated intoxicated she grabbed his badge and she retaliated by shoving him under these circumstances foster decided to arrest her for battery of police officer even if he were mistaken as to assert rightly or or her motivation or even the source of the show of the evidence and that's only one conclusion a reasonable police officer in foster's position would have believed that fear she had probably cause to arrest plaintiff for battery of a police officer well the problem is that there is no evidence that that was an objective the reasonable there is no evidence that of at all all of the evidence except  immunity talks about reasonable officers there's an awful lot of leeway given the officers to make mistakes under the heat of the moment well the the trial court says in his previous three orders denying  saying that he says that that officer pastor's testimony about the arrest and about the events leading up to the arrest was confusing and i think that's an understatement there is no judge says is that this woman who was walking away from him according to the transcript that this evidence didn't she was walking away from him he told her to leave and remember when you look at objective reasonable ness you also have to look at what is in the record about his orders his orders were not to clear the house  her outside and slander against the car now let me ask you this if it has to mean that we don't agree with your first point for the sake of argument that this claim is independent and correct so even if there was a injury to her arm what's the record show the injury w yes they were and as i said she had emotional injuries also but when that the court beloved says she believes he could use force eight there's no evidence of anything that could possibly support objective reasonable that's a standard you have to have evidence for that arresting somebody is the use of force putting people's hands behind their back and putting handcuffs on him is force a question is whether it was excessive force so your argument would be the throwing her down drag  apparently had to do that and took it and put it on the floor and then dragged her out and the jury found that that force was excessive that he didn't have to do it she as they said the undisputed evidence was that she was walking away i guess my basic point is that i'm going to use all my time i can see that the verdict that the jury rendered segregated the several claims right yes it did and you have to look at the jury instructions to see what they necessarily found in coming to it's not a jury verdict with lots of questions it's pretty conclusion we questions you have to look at the jury instructions and what elements they have to find to find no probable cause for excessive for the verdict that they did and the judge made his own credibility determinations on what this officer foster did or didn't do or believe it or didn't believe and i believe that that i'm submitting that  good morning your honor smith please the court my name is cliff greenberg i represent the city of san jose and police officer foster in this case when i heard a few factual statements that need some correction and i want to start with those counsel said several times that officer foster testified that he did not the bottom of page seventeen and on to page read it question what happened after the use your left hand and knocked her hand away after i believe i was going to try to grab her hand and then i thought to push on my left shoulder which was actually right to what did you do once you felt the push on your right shoulder i was able to step closer and grab her hand and placed her hand in the controlled why did you do that i was going to place her under arrest for what for battery on a police officer there's no question that says uses the word controlled he does where does the where does the pain compliance  come from in this case she says i was able to step closer to her and grab her hand and placed her in a control hole of pain compliance old and and i'm not sure that this is in the record so i'm answering it based on my understanding of how these things were controlled is not a lot different from a compliance of pain compliance with it did anybody say i used the pain compliance hold on or did he say that i did i don't know if he said it here but  i believe that there was extensive testimony i'm sure there was one i'm interested in the excessive force side of the whole thing what are the facts show from from the plaintiff side from the plaintiff side  facts show that the after after the the batch touching the plaintiff says that the officer hit her arm the officer says he indeed did yeah it has to be from then this is an important part both what i heard just now is that she was taken to the ground and the testimony is very clear that she was never taken to the ground last night or read through all of her testimony she says she was palling but then another officer grabbed her so that by the time the other officer grabbed her she never fell on the ground she had two officers holding her arms they hurried her out of the house and put her up against the police and the court said a reasonable officer could believe under those circumstances and that was a military situation with the vice president talking but what we had here was a possibly hostile crowd of  suggest perhaps a different where the question is whether the jury was or was not entitled to find out for success so normally we give great deference to jury verdicts unless they are unsustainable as a matter of the where respondent claims he was shoved or thrown inside and the reason for the shot remains unclear it seems agreed that respondent placed his feet somewhere on the outside of the van perhaps the bumper but there's a dispute about whether he did sort of resist as a result of the shove he fell to the floor way caught himself just in time to avoid injury that's slightly different than being thrown up against the car well it might be slightly different but there are no injuries there was another miss relates to the issue of how hard was she thrown against a police car if she was strong for that yes except this is not a question for the jury well ordinarily yes but in this case the judge who was present at all the testimony listened to the arguments that were presented after the the verdict and said based on his view of the facts even most favorable to the plane if there was insufficient evidence to show that this officer could not have believed that what he was doing was resisting this you know and we're talking about we're talking about immunity we're talking about qualified imminent but this particular claim in the in the jury instructions was isolated and on the verdict form a specific amount of damage was assessed with respect to the farming or grounds for you know that the jury verdict amounts were assessed based on the cause of action and did not segregate between what part of the cause and what facts related to the excessive force there was no answer on the jury verdict one that would tell the court that they gave money for the shove or the or the hit you're saying the jury verdict amount to send a visible if we if we there's no way to discern from the jury verdict if the court says i think that possibly the shove against the police certainly the issue of battery during the arrest but there's no way to know i'm answering the question about the shove against the police car battery during the rest could be various things well it just doesn't matter as long as there fact that he didn't do it but you can't commit a battery against that and everyone admits as was discussed earlier that there was a battery committed which gave rise to the probable cause cannot commit a battery even if the police officer improperly told her what to do or had had no right to even be there she can't commit a battery against that offers and if there are no further questions which means you have anything else according to judge where she was thrown to the ground and that is in his first order denying the rule fifty motion but this comes up on reconsideration in his first order i found it in the record also this is what he says and that's at the appendix i think fifty four officer foster struck her across the arm with a heavy flashlight as she from the force of the blow he proceeded to take her down to the floor and then the two officers forcefully dragged around the building threw up against a car handcuffed or and eventually took her off to jail and then the next paragraph  analysis that her principal damages are not from physical injuries are most significant injuries emotional distress i read that and i'm not sure how that supports his his taking the ex issue away from the jury or rather just regarding the jury findings i want to address the excessive force it is completely divisible it is the fourth claim deprivation of civil rights the jury instructions  the jury and by the way there was no objection from the defendant's any of the jury instructions the jury instructions to instruct on the first claim and tell them that  special but there's a separate verdict on each plane and on the fourth claim question number four after he made a decision to place your hand you were asked to play deplorably shell macintyre prove the defendant william foster committed they awarded her separately one hundred thousand dollars one hundred thousand dollars for false arrest which and i'm not conceding anything but if you accept that the touching of his bad i'll be at the instructions because it really is a bold claim for deprivation of civil rights which is the use of unreasonable force