morning good morning your honour's and may it please the court my name is mary pat barry i am present on behalf of defendant and appellant santa barbara county sheriff's office senior deputy freddie pity i plan to  this appeal therefore asked this court to reverse the district court's denial of deputy p d is post trauma motion for judgment as a matter of law on grounds of qualified immunity and sufficiency of the evidence and in the alternative his rule fifty nine motion for a new trial what's your best argument for qualified immunity to north normally of course we get these all the time as you and we have white versus poly that's come down recently but this case is a little unusual in that there is existing law for similar kinds of situations and it gets down to a very fact intensive analysis you've got a kid this is this is a pretty straightforward deal a jury found the same what would you point to in the facts that would suggest that in this case a reasonable officer and deputy for d s situation could not have known what he was doing was unconstitutional and your honor our position is that he he would not have known and could not have known and not every reasonable officer would have known that what he did by taking mr shafer to the ground to place him under arrest would violate mr schaffer's constitutional rights been given the fact that this was it was not under any danger nobody threatened officer patea well your honor when you when you look at the the context of what deputy pedia was addressing first i believe the environment is an important part of the analysis in this case the environment is an incredibly crowded street in i love this just after midnight in a college town on a saturday night just after midnight the testimony is the noise ordinance goes into effect and students are flooding out of parties deputy pm has received a report that individuals were hit by water balloons and water balloons as the record shows in i love this are a significant problem what happens is a kid throws a water balloon and another kid or into a house or into a party the person who gets hit gets upset there's a lot of what i'm asking for is what what danger most of these qualified immunity cases deal with the fact that the officer feels threatened he's going to get shot or seriously wounded or a companion is going to get wounded time wise i i thought this was a very quick thing there you go there wasn't a whole series of these things you told me and you know to put down the water balloons he said why and then bam is on him and my wrong you're  water balloons mr schieffer again said why why do i have to deputy pm then said this is your last warning i need you to drop the water balloons and again mr saber says why i don't see why i have to so it's for instance three to four instances of without touching mr safer simply commanding that to drop the water balloons which can be used as deputy said as a distracter to be thrown at someone out but i get worried again we're talking about not the reason why they might want to get rid of the water balloons in the overall environment we're talking about the threat to deputy for the in what way did you know college students tend to mouth off we all know that it's common sense and if he said you know do why do i have to you know that's not very polite but that's not a threat pretty is law if it's not a threat to injure him so let's take your argument you say he said it four times that's not what i recall but say he did four times for quickly them and then he hits him planting down of the ground arguably injures his his arm is that the jury obviously found that was excessive force so what we're really talking about is whether the case law and a common understanding of the threat to him gave him qualified immunity and i'm struggling frankly with how he gets deputy pedia then grabs mr shafer by one arm using his hands he says and deputy party is intent is to get mr shafer out of the busy street where deputy pretty attests to fight it is a threatening environment for law enforcement as you said the kids mouth off they collect in groups they throw things at law enforcement so his goal is to get mr shaffer out of the street over to the curb where he can start investigating the suspected that every he grabs him by the arm back to battery using water balloons that's what deputy pretty is doing he's investigating reports of criminal activity he wants to investigate whether shaffer personally had used water bill and yes yes or is that on the record it's in a deputy previous testimony where and in his probable cause declaration he says i got a report from four individual saying they've been hit with water balloons and i want to know what they should be for had done that right to investigate in the jury find in his behalf is that he used excessive force right exactly on every other part of the jury's verdict came out in his favor yes yes let me ask you a question which  i struggled with in making this determination once the jury's made a determination do i have to give the plaintiff any benefit of the doubt as to the facts you have to on review is to know what were you and you have to view the facts in the light most favorable to the jury's verdict and to note i'm talking now about what the plaintiff or the ledge or what the playing of could alleged but as to the jury's determination are which makes that a little bit different if you will idea so therefore we can really talk about whether he didn't have probable cause to arrest because the jury said they did so everything that he might have done or might have happened up to this opportunity or up to this if you will take down the jury went with him he had the probable cause to make this arrest we're just suggesting that point is there any case law which would suggest that now the officer should have known what he was doing was against the cause exactly your honor and our position is that there is not in fact i cited to the cases that i believe well i should tell you if you look at what the district court relied on those cases do not a apply to the facts in this case in this case the district court there's a huge gap in the district court's analysis of the facts that it relies on in determining the clearly established element of the test for qualified immunity what the court does is it misses the entire period of time that judge smith you just mentioned he said didn't he just get slammed to the ground after his fourth refusal to obey no deputy grabs his arm tries to move him to the side walk as use trying to move him to the sidewalk holding one arm mr shafer is planting his feet and resisting and that was the testimony of mr schieffer friends as a result deputy pedia and mr schieffer start turning in circles and they travel estimated by different witnesses between ten and twenty five feet out of the street across the sidewalk and up the driveway the entire time they're spinning and turning it looks like they're tripping over each other's feet that's the testimony of all of the eyewitnesses so deputy pretty and knows he's dealing with not only  to you know somebody grabs you if you try to shrug aim or or something like that is different but just the fact that somebody grabs him by the arm i would think anybody would you would i would and your honor what i think the a review of the facts from the initial contact until mr schieffer is taken to the ground is absolutely required under the qualified immunity test the supreme court keeps repeating for courts reviewing these qualified immunity is to look at the specific particularized content and context of the case so when the district court in this case gave no no attention to the grabbing of the arm mr schieffer trying to pull the arm away and for law enforcement whether mr schieffer is doing instinctive or not if deputy is starting to accumulate information as he tries to investigate the crime of battery and that information is that mr shaffer is not going to be compliant and he's not going to be someone who deputy pretty a can safely a score to the curb and do an interview with and then probably let go once he drops his water balloons are going to save any of your time i do your honor i know it was quickly so i just urge this court to take a look at the what the district court did not review mad i don't think that with the environment those law enforcement officers working on i livest on a saturday night if deputy p d had gotten a report from someone that an individual in the street was sticking their tongue out he would not have pursued that investigation all right look forward to hearing your rebuttal me the normal case is for me to have this case before the jury gets a chance at it this time the jury had a chance that the jury had a chance at the jury said your client gave him the probable cause to arrest by as actions then the jury said the actual force or used was excessive yes ok let me give the jury every bit of credit what's the best case you've got supreme court case that says this is excessive force i guess my chief judge on the first day of another hearing or my presiding judge on the first day of another hearing glowing before you said white vs poly just barely came down it's a new kind of case it says we got to have some specifics here we cannot just go on the generalities and when he said that counsel i never thought four cases you used and the a comparable amounts of force used by the officers none of those cases involved an active resistance none of those cases involve the challenging environment if i look at meredith versus their oath if i look at wall versus the city of orange if i look at hanson v black if i look at blackbird there's none of them that do that in fact that's why i worried about what you're really trying to tell me why don't you try to instead distinguish this case from tatum versus city of san francisco if you my problem is that i tried to find something where this kind of thing was happening and they're all ninth circuit cases they're not supreme court cases and they don't suggest that this officer would have known for instance let's just look at i mean city jackson versus the city of bremerton and officer did not use excessive force where officers who were substantially outnumbered by a group of people pushed the plaintiff to the ground sprayed chemical erupt irritant in the plaintiff's hair and lock the plaintiff in a hot pro troll car after she attempted to interview interfere with the arrest of her adult son on those facts and i would say this is this case is much different we have a we have a college student who is walking down the street carrying water balloons which are not in themselves illegal there is where that's absolutely what they can jury said they the crime was they threw w thrown at somebody else he was investigating absolutely investigating the battery and he had probable cause to arrest well your honor we don't know what he was investigating because the actual the there were no very thought it was ok we don't know that your honor from the jury's verdict he said that he was investigating a supposed battery but there in fact there was no record of any crime of that battery having occurred he didn't take any witness statements into can ever says e mails telephone numbers this was something that came up afterwards he didn't say that to mr shafer when he approached him and that's corroborated done only by mr safest friends but by the partner the only trying i'm trying to get you to do is i can find it by a lake and if the jury wants to find a violation because i have to give deference to the jury after i get through with that then i've got to find a supreme great court case that is so on fours that i am absolutely going to say the officer is down the officer lose and i couldn't find it and the cases you cited didn't make it so cite me a good case while you're on i think the cases that are cited here actually are comparable as  think the environment here is all that relevant for this reason the offices and cells did not feel that they were and in jeopardy because they didn't tell people i didn't didn't tell other people around them stay away from this man who might be dangerous they'd never perceived a threat to themselves they never perceived a threat to other passers by this is just an interest was an interaction on the sidewalk no one perceived any threat to ask you this council according to the jury had probable cause for what what had occurred that created the probable cause well that investigating the battery or was it something that mr shafer allegedly did well it that's an interesting absolutely that that's that's out of probable cause to arrest how could that happen without the actions of the young man being a part of the investigation and giving in the probable cause the only thing we can look at based upon the evidence and the jury found was that the jury could have concluded and this is there is some speculation here the jury could have concluded that taking four times to have been put on the water balloons could be construed as delay and perhaps he was arrested for delay that was the probable and that's under california penal code section one forty eight yes the the standards are delay obstructing or resisting there the evidence very obviously found that there was probable cause for the officer to believe that schaefer violated section one forty one of those three yes but then it went on the find that the manner of the arrest so the fact of the seizures ok the manner of the seizure is unconstitutional yes ok with respect to that point i think that in turn let me let me suggest that perhaps the the our factual predicate would be the facts in the light most favorable to shaffer with respect to the excessive force so my question for you is where in the record was there any testimony any affirmative testimony that shaffer did not resist grabbing his arms forcing the water balloons for from from his hands and force him to drop them not the d s said his goal was to get the water balloons odd of his hands once they were dropped why continue the attack was there any well he could have arrested him for violating one forty eight so was there any witness who testified that schaefer did not try to remove his his arm or his hand or his wrist mr flynn said that the different wasn't complete control of mr flynn said that shift shaffer never lifted his hands to the defendant that's in the supplemental excerpt of record of pages seventy nine and eighty but that's not saying that shaffer didn't try to break free well to provide that schaefer didn't try to break free by lifting his hand in the air right could have left he could have moved his arm sideways or down well that's true but but of the testimony from pedia which the jury apparently rejected w that is that mr shafer tried to lift his arm and try to break away so if that is the allegation from a witness directly refutes that additionally  being twisted around and he's trying to maintain his balance it is a natural instinctive reaction which mr padilla should have been aware of as well that people suddenly attacked or going to brace themselves to avoid injury to themselves the defen expert even made the same point he didn't think that trying to keep the balance and avoiding injury was resisting arrest and there was additionally the so called the probable cause declaration did not  say that resisting arrest was the grounds for the grounds for the rest of the probable cause declaration referred to how mr shafer supposedly supposedly would not surrender the water balloons so it's not really clear at all that mr padilla was arrested for resisting arrest in fact i never even said he was or for that please you said that the probable cause was because mr shafer refused to surrender the balloons i believe that  the record if you give me a moment i think i can point to the record in the  in the in the in the probable cause declaration whereas in the record place i believe that is exhibit thirteen ok but i believe you're i don't have  to to throw down or put down the water balloons as a matter of fact the evidence is pretty clear that nothing was said about an arrest until after the tackle after the final shape why was safe shaffer so attached to those water balloons i'm trying to reach back to when i was in college your honor and i don't remember throwing water balloons at anybody myself although i was hit by a couple from time to time  is it wasn't the right thing to do when an officer says drop the water balloons you drop the water but yes you know you know in hindsight being twenty twenty yeah he probably should have but mr  in court i mean i was so upset when i read the traffic i was kind of startled by this he says he views the questions to him as challenges he views questions to him as defiance why can't i have water balloons ok son here's the problem if you throw them at someone some is going to get angry and some could get a fight could break out neck it could be hurt someone could be hurt that's counseling someone to put down the water balloons and don't do what you're thinking of doing that's not the same thing as saying you know you through some water balloons i've got this report from anonymous people that they were hit by water balloons and i'm going to force you to give them down and even after you drop them i'm still going to continue my attack and then arrest you for  violation of p c one forty eight and he actually didn't say he was going to arrest them until after the tackle was completed so i want to ask you a question about the relative provocation if you will i'm going to read just something from brian versus  macpherson which is one of our cases two thousand and ten which said while the commission of a misdemeanor offense is not to be taken lightly it militates against finding the force used to effect an arrest reasonable in this or the suspect was also non violent and posed no threat to the safety of the officers or others i had asked your opposing counsel a question about what was the threat against officer patea i believe her answer was it wasn't him it was the threat that the water balloons posed to other people would you comment on what role if any the the facts are about water balloons and no threat personally should play in our deliberations i think the fact that there was no threat to the dia or to anybody else at that very moment plays into the look into your deliberations that there was no there's no basis for any force at all because there was no i said to him i see you have water balloons that's you don't i understand you're probably going to throw them son this is not the thing to do you people could get hurt people could get angry he wants to stop  well you know what his for well it can work because mr schaffer's friend complied with that demand so yes you can actually can reason with college students it is possible to do so little very even in middle you yours just very briefly of some of that information you were just given just is not consistent with what is in the record deputy p d s never testified that he treats questioning of him as challenging  never said when students question me i consider that a challenge to my authority in fact it is not say that i did not deny deputy pedia in fact said you know if this had been daylight and i listed was not in its condition on a saturday night at midnight i would have had a conversation with mr shaffer but in that environment deputy said that is a threatening environment for law enforcement his goal is to take action get him out of the street and in the record you learn santa barbara sheriff's office and santa barbara university california police they deal with the students by immediately get him out of the street get him on the curb get their legs crossed get their hands in their lap that way if they're going to get up and run they lose a second while they try to undo their like crossed legs  run but i just my time's up but i urge you to look at gregory versus county of maui the tatum case closer consistent with what deputy premier was having to deal with someone who was noncompliant was grabbed was turning and twisting and was taken to the ground and i cited the blaze that vs city of iowa city case which is out of the eighth circuit but it's interesting because in that case the eighth circuit review cases from the third the fourth the sixth in the ninth regarding what use of force could be used back in two thousand and nine and concluded that a takedown in circumstances like this a takedown just taking someone to the ground to effectuate the handcuffing is  entitled to qualified immunity if there was no physical resistance you know case authority says that even someone who is passively resisting force can be used against them but it has to be looked at very carefully  courts look at of course all of the facts and circumstances to determine if someone is is not physically resisting is there still cost you some level of force and of course to achieve an investigation into achieve an arrest graham versus conner says law enforcement can use some element of force i don't believe that if someone is not resisting that a takedown to the ground would be appropriate i absolutely would we would tell you that and the other question by my colleague thank you both for your