good morning your honor shon cabot on behalf of the appellant may please the court this is a fourth amendment excessive force case arising out of and out of an ensign valving my client in the water for township police department and essentially were requesting this court to reverse the trial court's opinion in order the opinion in order issued by the lower court you know in essence was bare bones at best it completely ignored the principles of civil procedure fifty six motion standard that clearly you know the case on the circuit flowing from the supreme court is that the court has to view all the facts and all the to be drawn from those facts in a light most favorable to the nonmoving party in this case the opponent the court's opinion absolutely failed to do that what's your best evidence here to show not correctly was the person who kicked your client or are hidden or whatever it happened to him when he was on the ground well there's testified the officer that handcuffed me kicked and punched those two clearly unequivocal both facts show the defendant secondly kicked and punched him for the also there are some facts in the case that aren't necessarily consistent in a pallies made a huge issue of that in in their in their response brief but that does not rise to the level of blatant contradiction as set forth they placed a lot of reliance on the scott vs harris case and it's interesting since scott versus harris kind of came down you know  i'm seeing this case whenever there's a little trickling of differences a fact scott versus harris come up scott versus harris is not a political in this case in any way shape or form i mean the harris case you had a situation whe said well you know i wasn't driving erratically i had concern for the people on the road etc etc then you have this videotape which shows he was weaving in traffic traveling at high rates of speed that is a blatant contradiction in this case not a blatant contradiction because there's there's some indications in the record that he was he was kicked on the right side of the head and it's interesting the booking photo shows a front and it shows the left side view never shows a right sided view never shows a bacteria now i'm not a doctor but i've been you know i've been kicked by my little kids  and i may not bruise i may not have swelling but it hurts and there's no doubt i got kicked them the booking photo shows that mr amberson is a darker skinned african american male  you know it is absolutely conceivable that a jury could say yeah you can get kicked and not have any visible injuries yet it's possible that you don't have swelling or huge black and blue mark that is absolutely possible and that's why those issues and the standard for fifty six requires that it go to the jury what the district courts say with respect to that on the district court really didn't say anything and in fact in its seven page opinion the majority of the opinion focused on a lot of the viability of the township the more now claim and in fact less than two pages of the opinion deals with any analysis whatsoever dealing with mahoney and stukely and in fact the last couple paragraphs or so of the district hit he didn't hit or kick plan that's essentially if you read the court's opinion the bulk of the analysis and that's since what the court did then said well we'll believe stukely do that at the at the trial court level i mean at the summary judgment i'm right at the summary judgment level and that's exactly what the court did no analysis of the facts the court the trial court admitted emerson says to that question did he do it or did it not i think he said he did a lab could pave the way that person precisely my point and precisely why the district court should not have granted assisted bringing the arms back to him those are really only two people that were there and cuffing them in the process i would have my say about half the way he is the eye witness he didn't really he couldn't identify which one but he did say he did see mr emerson get hit and kicked couldn't identify which one but i think it's clear from  stukely in mr emerson that a minimum of one of those two officers did it if you were going to a jury trial you presented the fact that it has to be ther but you can't tell which one is that sufficient evidence for the jury to decide the question if that's all you have one everett's clear that somebody kicked him but it wanted to well i think there's  more in the facts mr mr emerson even if we look at his testimony describe the asa did is medium build five foot eight five foot nine and again he's making this assessment one after getting kicked and two in a lying position so i think i mean i don't think it's as vegas that i think based on the testimony the jury could readily and easily conclude that it was that onto what is the numbered zero nine dash one three four zero it was it was an opinion published by the court decided june fourth two thousand and ten that was an excessive force case and in one of the facts of the case was that mr miller respond around slammed against the police car and its feet were kicked apart so one of the issues was a fourth amendment and alice of well whether or not because there were visible injury whether or not there could be a fourth amendment  course quite you know the court in that case indicated that just because you don't have a big bruise or obvious injury in fact the court says that the alleged use of excessive force even where the physical contact between the parties did not leave excessive marks or cause extensive physical damage you could still have an excessive force claim  it is not the extent of the injury inflicted but it's whether an officer subjects a detaining to gratuitous violence that's the analysis that the court passed goldbach because again going back to what i said earlier it is absolutely conceivable in a reasonable inference that excessive force can be used against someone and not have a black eye and not have swelling and all these things a jury can absolutely take that in and say yeah that's true based upon their own lives but base pon their own explicit experiences which are what they base the facts on in my last few minutes i ask you just briefly i know you just have a few minutes here what's the best evidence that stickley is the person who could assuming he was kicked was the evidence  stickley well he unequivocally was there he unequivocally testified he handcuffed mr amberson again looking at mr the scription albeit not exactly identical at least put step lee had a medium build and taller versus the slim build that i think he gave the other officer so again that's the reason of the two and warning your honour's may please to court karen daly on behalf of the defendants i think with this case comes down to in order to establish a claim under one thousand nine hundred three you have to establish personal involvement there's there's no evidence here that it was steeply that was the one that kicked and punched the plaintiff about what he just said that the evidence shows that the plaintiff testified that it was the guy who handcuffed him and drove him to the police station it was undisputed that stickley did not drive him to the police station it was two other officers that drove him he also said unequivocally that it was not the officer that arrived first and that chase them it is also undisputed that it was officer stickley who arrived first and chase that chased the plaintiff so evidence the richest those two policeman know there were there were a bunch of officers that were that were voluntarily dismissed there was an officer w canine that in fact i was under the assumption that that was a horny because he says while he was just standing there and didn't do anything that the officer with the dog that was a different officer that was already dismissed so his claims that it was mahoney that just stood there and did nothing but then he testifies that it was the officer with the dog that stood there and did nothing the problem here is that the questions of fact are created by the plaintiff  his testimony and then it is well established that conflicting statements in a plane it's own deposition do not establish a genuine issue of fact so you can't rely on the fact that he says while it may have been this person it may have been the pers the fact is he doesn't know who did it and you cannot hold officer steeply libel no reasonable jury could find him liable for this when the plaintiff doesn't even know who did it you know you're not arguing that it's not that it's constitutional to kick someone who's down no absolutely not a matter of whether there's enough evidence that he did it right exactly there's no personal involvement and to establish nine hundred eighty three claim you have to have that you couldn't tell who they were interacting with josh amerson no you couldn't tell if they were male or female could you know you couldn't tell if they were what race they were could you know you couldn't give any description could you know so he doesn't know what officer it was he said there are a bunch of officers there he has no idea he said there are white males and that was the only description he could give so there's no evidence in this case that it was officer city clee other than the conflict in his own he gave was five nine medium build which other officers there fit that description that the record to i believe so yeah there is testimony from all the other officers do we know what what the also says that it wasn't the officer who chased him we know for a fact it's undisputed that officer steeply was the one who chased him he also says adamantly it was the officer who drove me to the police station we know it's undisputed that officer stickley was not the one that drove him to the police station so i'll probably stay officer sawyer originally drove him and then his car got stuck in snow i believe and he was transferred to another officers car who who use issues kind of narrow now i think i think the issues there oh down to the point the shows that the trial court certainly was incorrect and that has to go to a jury one what about the argument that  she just made has a certain force i think and i could restate it but you just heard it i mean how do you respond to it well you have two officers who unequivocally are right there dealing with them plus there are other people yeah but those two are the ones who are the only ones who admitted having any personal contact with mr emerson those two are in fact reading from the record and it's they they're the only does that mean they're the only ones yes because i submitted the testimony earlier where i asked her i said are they are these two the only watched and other lots of other officers there oh yeah then you're saying the record is clear that there were other off so there was other officers there but i'm talking about the physical contact with mr emerson at the time the excessive force took place stukely is very clear he didn't even say that mahoney helped him handcuffed he said i handcuffed so you have his testimony that leaves him as the singular officer responsible for the excessive force working in conjunction with mr  you have different facts between the officers themselves but looking at stukely he he's soley said i'm the guy who had them and the description given by mr  emerson more fits the scripture stukely as the guy who did it why did he say it's the person who drove me and the other just the other difficulty that your opposing coun referred i don't have an answer for that but i do know that difference is a fact it's not number one it's not a blatant contradiction sounds like a blatant contradiction because i think when you have an injury like this where you have a head injury which is corroborated by seizure activity and the right hemisphere issues as the status and it is a matter that i'm asking why it's not a contradiction as to who did it not whether he was injured but i think in some of the her argument seems to be now maybe he was kicked we just don't evidence that this person did it i think the evidence is clear and i think if anything there could be that logically some confusion based on the injury as to who did it as far as the driver part and all that but again that's a function of the jury to decide to discredit or or to credit now to the role of the trial court and again for those reasons and the reasons