next case is marina borowitz versus city of los angeles her badly damaged shoulder and that she was in excruciating pain she told the officers that she needed to make her doctor's appointment which was in less than ten minutes the doc officers insisted on her getting out of the car and handcuffing her painfully behind her back while she in their words squirmed and cried out in pain he's pleading with them not to trust her arms she said repeatedly to both officers i have a frozen shoulder then inform the officers that she also had multiple bypasses and she could not have her arms in this position or she might die or go to the hospital she pointed them to her doctors information which isn't was in the front of their wall of her wallet the officers did in fact obtain her wallet from the car londe the detainee surrendered and yet was pink have him painfully handcuffed for thirty minutes now mr work in this case was held for a total of fifteen minutes between the two transport over fifty minutes and she was suffering white hot blinding pain and serious injury as her bypass then became a clue did an obstructed with clots she told the officer she could not see she pleaded with them to take the take her somewhere where she could get help and yet they didn't see any medical attention they didn't call her doctor they didn't call for an ambulance and in fact when the nd set of officers arrived and also the issue of this case they told the nd set of officers it's not even that serious are part of the sly ability mix or perhaps you might withdraw the claims against them because it doesn't seem to me that they really had much to do with anything here and there from i mean law i think the standard is that they have to be integral participants in the underlying situation the i just wonder whether you still want us to consider whether you have a viable claim against them or whether perhaps you want to separate the wheat from the sheriff and and thirty where they arrive they're told by the officers you know it's not that serious we're taking her in because she's complaining and then they hear her crying out in pain about her shoulder from the car and it's our contention that we've been very easy for those two officers these allegations because called you and solace you may be undermining go on the cutting you know what i considered to be more serious claims against the other officers i just want to inquire with you really want to consider those claims against them and whether or not it might be more not handcuffed her all she was a compliant woman who pose no danger to them as you can see at your ninety they didn't even pat down like that night because they didn't consider her dangerous they didn't call for backup they didn't do anything that would indicate that is worthless dangerous at all mistakenly but reasonably thought that the spore awake wasn't in that extreme pain because they want to aware of what a frozen shoulder was and she looked able bodied and i don't think the officers need to have any medical knowledge the only i think from the circumstances she described her injury to officer is st is a badly damaged shoulder and you don't need to have any medical knowledge to think in your mind ok a badly damaged shoulder then that's a shoulder and that's a serious older injury and she's telling them that her arm won't go that way and she's screaming out in pain the moment that they put her hands on they put their hands on her and they forced her arm behind her back and so they could have easily credit her statement that she had a hold one hundred once she told them repeatedly she had a frozen shoulder seen a badly damaged shoulder that it was hurting her if the officers here maybe the officers own words undermined their case but if the officers didn't believe her a claim of pain would it would have been ok for them to still handcuff her behind her back no because in palmer and meredith and milan there wasn't any independent corroborating evidence there was anything else that needed to happen besides the template of pain for the officers to at least make some effort to check on the handcuffs to accommodate the plaintiff in some way and here there's several usually available commendations and they also could have called her doctor she gave them her doctor's phone number and when seventy one you'll see the doctor testified he was available and they went to the station officer is to says in the video exhibit three that he googled the condition frozen shoulder at the station and yet that didn't change his position on the fact that she should still have her arms behind her back there's no authority that an officer should just be free to ignore any requests for accommodation free to ignore any complaint of pain that's not that's not what the case law shows  you'll see in winter out there was a claim of shoulder injury and the court found that in fact that was an abusive application of handcuffs that it was done with malice when after hearing about the shoulder injury the officers ignored it and then continued to handcuff the different combinations officers could have done they could have also if they didn't want to leave her completely and handcuffed they could have handcuffed her in the front which she called for herself during the arrest they could have called the cage car which officers testified at the depositions was available to them at the time and with a caged car there wouldn't have been any concern at all about ms forward could not that i believe they had me but even if they did have a concern about her being dangerous to them they could have called for a caged car so that she could have been transported without h s they also said to her on the scene that they were any hurry to get out of there so they held her at the scene for about fifteen minutes before even beginning the car ride to the station so defendants make a lot of the fact that the car ride to the station was only five minutes long but being held for around twenty five minutes at the st transport because they just kept her at the scene and they told her we're not in any hurry to get out of here even when she was telling them she want to be taken somewhere to get help all of the officers orders until she approached until they approached her to handcuff her it wasn't until the firm grip was placed on her that she in their words began screaming at all  she got her license and registration out for them she answered all of their questions and under the a t f agents there's no additional requirement for deliberate indifference so the defendants aren't contesting that the district court erred in finding that qualified immunity applied to the a t f and under shihan at the supreme court it's clear that qualified immunity doesn't apply to the a d f defendants aren't contesting that they simply say that a deliberate different standard should be applied at the city level rather than at the officer level but these circumstances even mentions a person in a full body cast that he tried to handcuff but it isn't law in the case that shows that there were circumstances in the past where the officers would not handcuff people if somebody is in the wheelchair if the plaintiff in that case had a had a stroke couldn't move his shoulder properly had a shoulder injury and they done less abusively handcuffed him so you may have individual situations but in order to satisfy bill you really need to show a broad  i just don't see it here there's also a record of nine complaints that were previously filed that are for eighty eight and for ninety five in particular there's a record of a shoulder injury but the main crux of imo no claim is that both  always grant come somebody regardless of what their circumstances may be i don't see that to be the case here we have the training up the testimony of the training officer as well just in week he's the training officer of the l a p d on handcuffing and he testified that they never trained them to accommodate disabilities and handcuffing that instead they would only the only example they gave them was if there was an amputee so you physically couldn't handcuff them then there would be a way to hang up but there was never any training of the officers brief with regard to your italo torrie arrest claim but i have to confess i don't understand how the distinction you draw in the reply brief really speaks to the supreme court's point you basically seem to argue that well we have more evidence of retaliation than they had and in the case from alaska but that's not what the supreme court based its decision on based decision on the fact that there was probable cause for arrest and that's enough and the one exception they carved out was if that happened to be for something for which people don't actually get arrested and i don't see this case fitting into that exception so is there any other basis for us to disregard or distinguish the supreme court's decision in that case was rendered after this episode and at the time this happened the standard was a but force they had to say on the stand well then to see something that's correct and so players don't have a chance to develop a pattern of complaints but this is also retaliatory use of force case so it's clear from the statements of the officers that they were applying the handcuffs to ms borrow ak holding her for so long to the supreme court's decision if there was probable cause for arrest and there was because it was an outstanding warrant well the probable cause may cover the arrest but it does not cover painful handcuffing it doesn't cover abusiveness it doesn't cover malice it doesn't cover any of the manner of the arrest and so while they may have had a warrant to take mr barak into custody it was said has suggested to me there is a viable distinction from this report's decision i think are about thing else i want to hear but i didn't find anything viable in the reply brief and i haven't heard one this morning i think the crux of our claim is really that there's a use of good morning honors jonathan eisen for the city of los angeles i think the most useful way to look at this case is to try to pinpoint what facts turn a supposedly constitutional case out of an ordinary arrest on a hit and run warrant i think turning to the th amendment st the officers state of mind is totally irrelevant what you said that this arrest was pursued through a warrant that's correct isn't there would be factual issue about whether at the time that she was arrested whether they had knowledge of there was a want i mean this seems to me what happened here it started as a fairly innocuous situation obviously words were exchanged this one was not a happy camper obviously but she was officer and the check on her and found out about the wine but that's not the reason why she was stopped initially so how can you say she's us that is suitable for it it's not the reason why she was stopped initially that's correct but the officers were aware when they pulled her over that the registered o officers testified and their declarations are in the record while they were following this board way when she pulled in front of them they ran the license plate on the car when they saw that the tail light was out the what came back to them on their computer in the car was there's a warrant for marina bore with said that that was what it was all about and then for only he had a light from the cos he proudly didn't like the way she was talking to him and at that time you know was when she was put under arrest there's nothing mentioned about the wanted that time honor he didn't say a thing to her about the warrant i don't think there's any evidence that could put in dispute that he knew about it the contention that the women had know about it i don't understand that the the officer officer as an them having run the license plate and had return on their computer before he got out of the car but wasn't deposition testimony to the contrary no and this is i think a critical point the testimony that the plaintiffs are relying on to say oh wait there's disputed fact here if you read it what officer is says is that it was in his internal affairs interview he says he saw the license and then there's a pause the way that the sentence breaks the clause breaks and he says my partner had run the license already so the way the plaintiffs are reading not contrary to both officers testimony and frankly contrary to records of the plane it has to show timestamps on when these when these searches were run their reading not to say wait a minute it's not clear that he knew that officer ray's knew and i told you tell me she was stopped because they knew there was a warrant for her rest no do not because she had a broken taillight i'm not telling you that i'm saying she was stopped because she had a broken taillight but they knew at the time that they stopped her for the broken taillight that marina bore with the registered owner of that car had a warrant for either on that point i'm not sure of the video cuts against us at all doesn't reflect any can between the officers that would show that this was something learned after the fact and that's why is who a jury to sort all this out but you wanted to send this to the jury is to say that it's a reasonable assumption on this record that they happened to get lucky that this person had an arrest warrant reason they'd assumptions the predicate for somebody judgment determinations for two to get past summary judgment there must be facts of pushing to support a reasonable inference and respectfully it's not reasonable to assume that the officers just happened to get lucky particularly when you have a record showing things like a timestamp reference from their computer as to when they made these inquiries about the license plate in the car so in any event the you think qualified immunity attaches here yes i mean  case back in two thousand and seven and it made these notes here is what the court quoted this is an excessive force claim the court held quote when no immediate threat is posed and the police can use other means of the straining a suspect they may not insist on doing so in a manner that will cause the suspect pain it seems to me that that's the applicable legal standard and don't you think that we have to flush out the facts here let me go further when through the police joke the suspects injured on doing a pat down the were investigating a nonviolent mr mean a traffic offense like they would do and they had no evidence that the suspect was a  i don't think we've made a claim either way on that i think officers are entitled to assume that you can't have an unsecured arrestee in the back of your car with you pick up being arrest these is an ordinary minimal use of force the supreme court has said it's normal it's not a violen establish anything to do with handcuffing for starters it's not a handcuff in case there was a pat down it went that route and the court said hey if you're putting someone down you know there's no occasion to use force on them at all handcuffing is a minimal use of force it's ordinary it ordinarily attendant to an arrest that's clear both in five minutes now this officer should know you know it's completely outside the range of reasonable assumptions any officer would know it's outside the range of reasonable assumptions to handcuff that person i just don't think you can say that in this record so qualified immunity i think is should be this is realm of things that should be protected by qualified immunity on the th amendment side i'd like to speak if i might as well to the a b a claim that the issue here i don't or stood the plaintiffs to be dismissing that claim is against the officers individually i see now that they're still relying on the facts it's the individual officers to try and assert vicarious liability against the city that still requires a showing of the officers deliberate indifference and i think under either the standard to fall which is the case that sets forth deliberate indifference the standard of the n b a or this court standard and castro you just don't have it here with these officers the deval standard required the knowledge of the harm substantially likely plus a failure to act i'm not sure you can say that the officers knew the harm to this boric was substantially likely under these facts  you look at the caster standard there still has to be i think this frankly officer under the circumstances would have appreciated a high degree of risk involved and still done what he did i don't think you could say that is true here either so i'm not sure if you can get to to show deliberate indifference on the part of the actors and i don't think we that there's been any showing no evidence or that the officers were deliberately indifferent it's certainly a higher standard to meet than to say that they were reasonable and frankly i'm not sure that you can say that they conduct all its sides of range of reasonable options that were available to them at the time they're making these decisions you're recognizing and when aroud says that the officers do not have to credit a suspect statements of injury so you have here a suspect saying things awful lot of information factually than a finder of fact skin credit testimony she had this medical information and she stopped immediately and said she's going to a hospital please of late for my appointment i mean it just seems to me that this is a matter which range of reasonable options available to these officers so even if you assume that ok they think to themselves away this person screaming maybe it's maybe it's not a lingering maybe she's actually injured they also then know it's five minutes to the station true that they were on the scene for twelve minutes but they left a minute after the other officer showed up to watch her car and as you recognize your honor that there's nothing to bring the other officers into this they literally they showed up there for a minute these officers th dramatically we have a handcuffing situation is that what you claim is i think it's two separate questions let me pick it apart i will not say that handcuffing is always permitted it's a use of force but it's a minimal one and it's one that's ordinarily expected and arrests that's something that this  recognized and the u s supreme court has recognized so you to totally see when the root is in a relevancy here it seems to me that that really points just to ask you what kind of a mess was this what with the circumstances on the line this whole dynamic and i think that's a i think it's one thing to say it's an irrelevancy i wouldn't say that but for a qualified immunity sake the supreme court has admonished the score particularly time and time again you need specifics remember what you're trying to show is that no reasonable officer in this in this context would have thought that their conduct was constitutional and to say a case where i said that's a broad reach i think we have to be a little bit more specific that your claim basically is there's a ok to hank of this woman we got to the fact that she was yelling the fact that regardless of the fact that she's  circuit that it's clear that what they were doing here was somehow outside the bounds of reason ability and don't be on officers own words undermine their case or at least create a factual issue so for example if the officer can reasonably but mistakenly thought that she was exaggerating her pain and that this was kind of a trick perhaps be more reasonable to handcuff her but in talking with her in the tapes they say you know i have no doubt to question integrity we just do it because it's possible some people may try to use that to take advantage us don't the words hear their officers own words at least create a potential factual issue of whether this was reasonable they might except for the fact that at least as a for the moments concerned this should be a totally objective inquiry so d if the officer says whatever the officer says you have to ask under the circumstances what could what could a reasonable officer have done maybe it's you know he thinks she's not going maybe he only said he thinks he's not willing i'm not sure that it matters again given the circumstances he was presented it's within the range of reasonable things an officer could do to say will leave this person handcuffed for a short period of time it's not a long time to take either handcuffs were given the extra combination that she wants to get to the station which is what they did  think very briefly and it qualified immunity point as well since you're speaking of when it grew due there's another case we mentioned on page fifty nine of our brief that's sharp for the proposition that you really need if you don't have clear authority on something instead of the suspect they put him in handcuffs and they tore his rotator cuff in the process and kept him in the police car and this court said on those facts qualified immunity for the handcuffing so it's really hard for me to see how you could have that case where there's qualified immunity and have this one where there isn't that it's supposedly so obvious that that with the officers were doing here was unconstitutional that they should be held liable for it i just don't think we get there on these facts and i think just very quickly next thirty seconds  so just to make sure i tie this up i think the case here bars on the st amendment liability if you were going to try to show what the relevant competitor would be to say ok how many times do officers encounter someone for whom they have an arrest warrant and not make an arrest i think if there is any evidence to be developed i'm not at all the answer is going to prove to be close to nothing in california the form of a warrant set forth in penal code fourteen and it is a command from the court to any peace officer of the state to arrest this person if they encounter them this case has officers that are clearly deliberately indifferent they say i'm not in a hurry to get out of here they say i don't care if you're in excruciating pain they say she says explicitly take me somewhere to get help and then if you look at exhibit three the transport for about twelve to fifteen minutes she's talking about how much pain she's and how comfortable she is she's asking for additional links and they again just ignore her concerns and they never take her to anywhere to get help she says i thought we were going to medical dispensary and they say well maybe they'll deal with that at santa monica we're we're not going to do anything for you so in terms of the deliberate indifference standard under deval i think the officers have more than made it it's a much more egregious conduct than what happened in duvall which is a simple denial of text regarding the now claim the district court dismissed this claim and qualified immunity which is clearly erroneous under darity so the jury should have had a chance to look at our evidence an l and then to look at defendant's evidence and to make a decision themselves as to what as to whether or not there was a custom in practice here there's sufficient evidence for this claim to go to the jury what happened in this case is that  put at risk of her life and in a minor traffic stop is there any evidence of when she said it at some point but i what i've reviewed in the record i really don't see anything about the outcome it's in the  medical records or in the sealed volume four and if you look at there's testimony from this bar with her deposition about her doctor's examination of her graft after the incident about the symptoms she was suffering after the incident including declaration in which he said both that he would have been available to take the officers call and that he had instructed her never to place her arms behind her back because it would cause a life threatening condition to think conclusion plaintiffs should not be placed in