glass case for argument this morning is fifteen thirty six thirteen district of minnesota david posey of versus the city of st paul at all has to be a difference between a person who is resisting arrest either passively or actively and forces used to think the person in the custody and on the other hand a person where actually complies with police person is taken into custody some level of force is necessary and so police officers are allowed to use some level of force to take people into custody for example a person is handcuffed lawfully and then he saw for scratches and scrapes on his an to focus on the facts of this case and so what happened in this case your honor is mr was a i was arguing with his wife and he called the police but then he changes mine and he hung up phone a police officer showed up with to defend the police inside the house and we're not disputing that and we're not disputing the fact that they potentially had the right to come into the house without making a claim for an illegal entry here i was important to honor is that these officers themselves  they wanted to surprise mr was it that was the purpose of their own announce entry they didn't want to a lot of him to give them advance notice or anybody else inside the house of they were there what happens when the enter it is very quick and very  simple he has no idea where they are mysteries they also claims that he that there their uniforms were covered by their jackets he didn't know they were police officers right away and so was he aware that someone had called the police he was aware that he himself called the police and hung up the phone it should have been a complete surprise that somebody shows up when you call i'm sure i understand that you are and i appreciate that he could have perhaps had somewhat of an idea of who they were but the problem is that he wasn't looking in their direction when they and he asked them who they were they didn't explain and told him to get on the ground he says why and then they tell me get down again and then he goes down and then he gets tackled and the end of it he ends up with a broken finger how much time between the time that he called and hung up and the time of the officers entered the apartment or residence here i don't recall the specific amount of minutes the past your honor but i believe it was rather very quick of the officers i think showed up with and ten or fifteen minutes and the argument between mr was a and his his wife was still on go and so so there wasn't a long period time between the call and the officer showing up and so two cases definitely uniform mr rose as saying that they were wearing long jackets that this happened april he say and they were wearing jackets that covered up their uniforms if i recall correctly i believe the officers don't after only several orders in a situation like this where he had no idea who these people were and then he went down voluntarily suffers a broken finger the after he's already on the ground the th and another factor that's important from these two cases from actions and small book both of those cases involve police officers who essentially tackled the plaintiff in a very similar way as we have in this case and the question that this court asked in those cases whether a reasonable jury could determine that the use of force under those circumstances was reasonable and i would also plaintiff took away the police officers phone and then the police actually though it in small different because here we have a domestic disturbance where there was at least looking from the perspective of the officers  potential for harm to the other person in the room where i would agree or honor that in that sense small is different but i would also point out that small involved a call to the police involving some sort of a giant bar fight that's what the call was and then when the police officer showed up they were there to investigate a violent fight and they suspected that mr small was involved in that fight based on those cases your honour's a reasonable jury in this case could also with regards to the false arrest claim there are two claims that are or two theories that the city has and in terms of why that should be dismissed there is one theory that mr rosier committed the mastic assault or that there was probable cause arguable probabl two things in that case that are important here first of all that court case holds that in order to for there to be probable cause or for a person to be even possibly guilty of that offense there has to be some sort of substantial hindering of the police officer duties what happened in this case is basically the city is arguing that if mr jose went down after the first command that would not be obstruction but just because he asked a question and several more seconds passed and then he went down after the second command all of a sudden that raises probably cause for obstruction after the first command or the second command mr was a had the not substantially under the police officers investigation he went to the ground he voluntarily a lot of self to be taken into custody and handcuffed the police officers conducted a full investigation there was no interference and there was still the uncertain no substantial hindrance of the police officer to duty so there was not sufficient arguable probable cause to arrest them for obstruction on top of that's they versus cross also talks about the fact that mere interrupting the act of merely interrupting a police officer that's also not enough and this is clearly established case law in the state of minnesota for many years police officers know that there has to be substantial interference and simply interrupting a police officer cannot form probable cause to arrest for obstruction so there was no more arguable  in their depositions of they put him in the handcuffs or they can just freeze a situation to investigate what happened and as soon as he was handcuffed they go ahead and they started their investigation and they actually find out the mr was a i was the victim in this case th he was slapped with a slipper by his wife they decided after their investigation of there was no probable cause to arrest them for the mess that assault so help us out with the timeline there they put him in handcuffs and did they have mediately take him to the car i believe they removed them immediately and then one of the officers they had outside with him and the other officer stayed inside to investigate was that is that the vest a geisha in your referring to as an immediate investigation which was an interview of his wife yes and is it undisputed that at that point the officers decided not to arrest him for domestic assault yes your honor that's in their police report and that's also in their deposition testimony of they the officer who interviewed the wife spoke with the other officer and they made had handcuffed him and let him go at that point after he was outside with the officers you based on your theory you wouldn't have an unlawful arrest claim absolutely we're not challenging the fact that these officers had the right to freeze a situation that perhaps you had called mysteries in that we don't have an issue with that but we do have an issue with is the fact that they actually booked him into jail after they investigated and found of that he didn't commit a domestic effect that arrest did not rise to the level of a constitutional violation because the officers had probable cause to arrest mr hosea for obstruction of legal process as well as domestic assault and the force used to affect that  false arrest the facts upon which this case are based are very important and they're pretty simple this case didn't start because officers were on a proactive visit this case started because the st paul police department received a nine one one call a call for emergency assistance from law enforcement and when officers arrived at the scene to investigate the call and let me back up just one second that nine one one call was interrupted a nine one one hang up which means that no information was provided with regard to what that emergency was who needed assistance or what the officers were going to face when they got there when they arrived at the address before they got to the house they heard yelling coming from inside the home when they went inside of the home they saw mr hosea towering over his girlfriend at the time as she sat on a couch crying not only was he just how not only was he towering over her he had his fists clenched and he was yelling at her when the officers saw that they gave lawful orders for m first because he has not established that the there was a violation of a constitutional right or that the right was clearly established at the time the force was used but was i understand his version of events as he was coming you presented the first command get down and i think it's undisputed that he did not comply but as i understand the factual scenario there was another command and he did comply at least begin to comply at the time of the will call the tackle the the force that was used yes your honor so why isn't that different than sort of what you've just presented he didn't comply and so they could use the force the reason it's important that i will say he did ignore first a lawful command from law enforcement officers and she waited thirty to sixty seconds before he began to comply and what's important to keep in mind is during th timeframe mr hosea is not mr jose is demonstrating aggression towards the officers one clarification i think is important is mr lederman indicated that it was the officers command to get on the ground that got mr jose as attention so that mr hosea turned around and all my the officers are there what's the source of that thirty second to one minute your honor that comes from the depositions of officers mcguire and officer stevens and officer requires deposition he indicates pages twenty nine to thirty that it took thirty seconds for one minute between the time that the commands were given and mr jose is attempt at compliance in misters with officer stevenson's death was stephen's deposition he indicates that it took thirty seconds between the time of the command and the time that mr hosea began to comply there is no testimony from mr hosea disputing that time frame or indicating a different time frame so we have a period of time where the officers are trying to control the situation and yes there is outside of summary judgment there is a factual dispute in terms of how many commands were given but for purposes of summary judgment we accept that mr hosea said two commands were given terms or a reasonable time for compliance with the police command no your honor there is no law that i have found that says that an individual has a certain amount of time to comply with an officer nor there any case law that says an individual has a right to ignore in officers lawful commands or anything that tells an officer that he cannot use force to arrest a suspect until that individual has ignored three coming ends when you say the thirty two is a thirty to sixty seconds what our starting point is at the first commander the second command the first command so the second command comes in within that thirty to sixty second time period the time frame is from the point that the officers gave a command and the point that mr hosea begins to move toward the floors command when we look at the reasonableness of the forced use based on the graham factors we look at the crime issue and here the officers are not only investigating a nine one one hang up call which the record shows is one of the most dangerous kinds of calls that an officer can go on simply because of the lack of information it's once they get to that call they have indicators that tell them this is a domestic assault and that also is a very dangerous call for an officer to go on because people are highly agitated any motional they often become violent and weapons are also often involved this is the testimony of the officers at the during the discovery  posed an immediate threat to the officers as well as mr stein's mr jose is towering over her the record indicates that he's within two to three feet of her striking distance one officer says it's one to two feet  he is within striking distance of her also can you give me an image of this when when they walk in the door is he between them and mr jones or does he come in do they come in  you're in essence they are between the the two persons is there something in the record to indicate what whether if he were closer to the potential victim that may be a different victim and the appellant are within two to three feet of each other and the officers are behind the appellant so there is no opportunity for the officers to get to miss dines without going through or mr jose i'm moving out of the way nostrums clist clenched fists nostrils flaring and now he's yelling at the officers when the officers tell him to get down instead of getting down he begins to yell at them and questioning their presence in his home and he ignores their commands the emergency still exists the officers have not had the opportunity to determine who made that nine one one call why the call was made and who interrupted it and why case there is no case law that indicates that pushing the suspect from a kneeling position to a prone position is unlawful and let's be clear the push that was involved here mr hosea testified that he went down on one knee and he put one hand on the ground left knee went down first right hand officers pushed him from his knee onto his chest he doesn't fall over to the rider the left he goes down flat and there is no law that says that that's unlawful when you have a slow compliance or not initial non compliance from an individual in crumley versus the city of st paul this court said not every push or shove even if it made later seem unnecessary in the piece of a judge's chambers violates the fourth amendment the push that the officers used in this case is exactly the push for show that crumley referred to it was not objective leon reasonable for the officers to put mr hosea on the ground to secure his arrest was there a factual dispute about whether there was any communication between the officers and mr jose at that time maybe something like that got a bad leg some kind of conversation during the compliance the effort to comply during the encounter there is a reference by mr hosea that he indicated his leg was injured there is also a reference by an officer that says he had a bad back the record isn't clear in terms of when mr hosea specifically said i have a bad leg but the record is clear that after the commands were given mr hosea did not comply and instead began questioning the officers is that and it's undisputed that the officers did not verbally identify themselves in this situation the often there is no record to establish that the officer said we are the police but the record is clear that these officers were in full uniforms and contrary to the reference that counsel may not be wearing long jackets the record shows that the officers were in full uniform with badges and patches on their jackets and the record is clear that mr hosea while slow to recognize them as police officers did in fact recognize they were police officers in addition to that the testimony from mr jose indicates that his son said dad they're the police so this is not a situation like atkinson where you have and  plain clothes officer surprising someone that doesn't recognize them him as a law enforcement these were law enforcement officers as the court recognized that had been called to the address by mr  hosea i'd like to turn next to the false arrest question qualified immunity also bars mr jose as false arrest claim because there is arguable probable cause to support both an arrest for domestic assault as well as an arrest for obstruction a legal process domestic assault is an act committed with intent to cause fear of immediately of immediate bodily harm or death in a household or family member what about what about the factual scenario that we seem to have  here they follow up immediately and the officers themselves decide not to follow through with that particular charge and so if we start from the point at which mr jose is outside is that still a viable grounds for taking him in if the officers themselves it's not enough for domestic let's go with obstruction your i think we need to take take a step back first of all the decision to  not made out at page forty three of officer stevens deposition he indicated he testified that he planned to arrest mr jose at once he was in handcuffs so the decision to arrest had occurred prior dependent upon the charge that's put forth it is based upon what the officers observed there what he wasn't ultimately charged but again getting out that that moment where i understand the officer said that we don't have that we're not going to do that we're going to rely on another is how does that factor into your reliance on arguable probable cause for the domestic assault arrest if we re ally focus once he's outside the residence your honor i clarify for the court the officers didn't say we don't have that they decided that they weren't going to charge him and the record shows that the charging process includes communication with the watch commander about what happens but to clarify the reason that the officers at least considered not charging domestic assault was because they know through their experience what happens when you have a victim that isn't willing to press charges and because mr stein is wasn't willing to press charges they knew that this is going to be a little more problematic not that they didn't have probable cause or arguable probable cause but they knew they were going to secure the arrest based on the obstruction not the are not the domestic assault but they did have probable cause for that and i would refer the court to the to the devon picked decision which is cited in our brief as well as the smiths and decision cited in our brief and with that unless the court has any other questions i would ask that the court affirm the district court's decision granting qualified immunity to  to where your honor he was never asked by anyone in his deposition to provide a specific timeframe and i would say if the court will read his deposition testimony the sequence of events he describes is that he heard an order he turned he went on the ground he told the officers that he had a bad lot were in the process of getting on the ground so that's a factor the officer should have should have thought about as well the final issue is miss hampton flowers discussed today that mr osea was pushed to the ground he actually testified on page forty nine of his deposition that one of the officers jumped on his back and so there is a difference there between approaching a suspect that you fear and pushing him to the ground rather than a police officer tackling a person and jumping on their back the final issue i want to point out is back to the small versus mcchrystal case by case and the case that of police officers take actions without identifying themselves as police officers that should be taken into account when terming whether their actions were reasonable and the same thing applies here because the police officers in this case did not announce themselves prior to entering mistress as house the