the court i am burley and david goodwin for you know everything we discussed the fact that the object of reasonableness of the officers actions towards mr organ reno is a question of fact and that the parties testimony conflicts as to as to those facts we laid out in that reply brief each instance where there was a conflict we also discussed the fact that  the judge the district court judge in a couple of instances actually said that the statements of mr all can we know were self serving and that seems to me to be a  problems with the the moving papers in the lower court and the way the evidence was presented that certainly the deposition testimony was life with the court certainly the was important that that wasn't done properly or it wasn't done at all if there was evidence to contradict the factual contentions of the of the moving party it's looking for some reason why you didn't do it this is a this is actually becoming a fairly significant problem in high volume courts where counsel him go the extra step and help are trial judges and the judges on appeal when we're trying to review the record figure out just where the contested issues of fact are i'm sure you're familiar with some of the language in our opinions where we talk about the fact that you know we're not big search ing for truffles here in the forest that  need help from good lawyers to point us to where this evidence is and as i read the briefs and examine the record i didn't see that here and i guess my question for you counsel is why are you talking about the record below  i talking about the record on regular everything on appeal i'm talking about the record that was presented in the form that it was presented to an overworked district judge who was trying to determine whether or not this is an appropriate case for wouldn't clearly it wasn't time i'm not going to i'm not going to try to argue otherwise but it didn't take a lot of investigating for a busy  actual contradictions and to lay them out in an appellate brief that it didn't take more than a few steps to do that so obviously the factual conflicts are there rogan reno's testimony was that mr blunt mr mclachlan had some kind of disability which caused him to have a balance problem removing problem that he had been drinking intoxicated and that he came in and was so severe that officer meyer and officer kittens you're both had cased replace well i think it might your honor if we assume that the that the police conducted for black of a better term a softball investigation where they went through the motions and didn't really pursue held in one form or another that the district court isn't required to scour the record looking for specific tribal jury facts and in the your case the court stepped forth over many pages in great detail  his deposition already in the record and other evidence the court you know then was required to at least find a trival issue of fact because the officers when moving for summary judgment the second time had cited those materials and looking at those materials which presumably we don't know for sure but they must have been properly authenticated and the arguments for the admissibility made presumably there were rival issues in this case i mean nothing in martina's for the proposition told the officer the handcuffs were uncomfortable and at the office that handcuffs are not supposed to be comfortable there's i was unable to find any authority for the proposition that i'm comfortable handcuffing along with the two a constitutional down probation or no more than speculation or unfounded accusation about whether the defendant really did act from an unlawful motive because the one summary judgment evidence must be competent harmon in that case failed to show personal knowledge it's not enough for a witness to tell probable cause but i thought you just told us a few minutes ago that he your client testified that the person was in fact smelling of alcohol and might have been stumbling from been drinking that he wasn't intoxicated and i moved i understood that but what i'm asking i guess is simply looking object if we from the officer standpoint as we're required to do under saucy versus gas why would the fact that your client admits that the guy was stumbling although he thought it might have been parkinson's disease or whatever plus the fact that he had been drinking be sufficient to four to allow a reasonable officer to conclude perhaps incorrectly as it might later turn out but nonetheless objectively conclude that there was probable cause that he just sold out the hall to an intoxicated person your honor i really don't have an answer to that i with his admission and he can't then say but nonetheless the officer acted improperly because there was no probable cause that's the conclusion or a nature that is simply not supported come up with some facts from which i know a reasonable inference can be made that leads to that conclusion and i'm looking for some help here from you and i don't feel so that i care the i think that that kind of