i think the most fundamental thing to keep in mind in this case from the perspective of the federal claims which is what i'd like to start is a judge tarnow this ruling leaves only one federal claim against officer berber and that's the substantive due process claim which is the court knows is a different threshold than say a fourth amendment reasonable in this claim this is a fairly high threshold to reach i think this court case that i cited in my brief mitchell not we have to look at whether or not you know with again this is an assault and battery or reasonable in this case we have to look as an under state law i mean there are state law claims of well there were both course the state law claim as we explain is barred by government immunity no but it's still and that was denied to judge garnett was it not no awesome battery and the intentional infliction of emotional stress go forward as does the gross negligence claim those three state claims he said could go forward no argument still on the case our argument is that on the state jumped to that point gross negligence can't exist because what's alleged is an intentional act under michigan law you cannot color as gross negligence and intentional act whereas as far as the intentional acts which would be the assault and battery and the intentional push of emotional distress those are barred by the odom versus wayne county framework i know in the brief i cite the lead it's versus phillips case to explain that a this is interesting because actually argued that when the attorney who had done the briefs went on maternity leave and no sooner had i introduced myself in the presiding judge said well it's subjective from the perspective of the officer isn't it counsel who said yes he said we don't need to say anymore and that's really the way you know the governmental immunity michigan on the tort claims goes and i think that's addressed pretty well in the brief you look at the odom case you look at the lab its case and there's just no way that in the facts of this case you could get past michigan governmental immunity which is very strong let's talk about a question he raise terms of right why is it not a question of fact as to what his intent was under all the have here is an interest to meet that threshold the substantive due process opposed to a reasonable to some to the fourth amendment we've got the situation which certainly was intentional that he was ramming to use the plainest word the back of the car but what we've got here is the opperman case south dakota versus opperman which points out that for police to move a vehicle from the road is a proper police function normally do it by writing a car that ten parked right in traffic i mean normally except the plaintiff's version of the facts there was no warning do i have to go with that but again the question is does this rides to the level of conscience shocking as opposed to say negligence or could he have been more considerate certainly could likely was it just plain why isn't that a jury question because the question if it's could be or could not be negligence doesn't rise level in both lewis in its very opening paragraph city of sacramento county of sacramento versus lewis and repeated again in circus but all all we have is an officer who made a choice obviously an intentional choice to ram to use the plainest words this car out of the traffic on the street where it was disabled let me ask you a part of the pause button bac bears the burden of proof i don't think there's enough proof to say that there was intent on the part of the officer either to damage the car or to injure the occupants but that's not my question my question is let's assume it was an empty car ok and the  driver was standing next to it ok so that there was apt to say put it is it in neutral to take that issue up just the officer does what he did under circumstances  jury arguable could find he intended to damage the car the transmission which you know try to move a card and park potential for damage my question is is that the quote injury is property damage and in that within the category of injury or does have to be personal and well certainly what they're alleging in this case is personally there's no claim for the car and i would say that that wouldn't rise to the threshold of the due process claim again it's a question of we may agree here that he was inconsiderate we may agree that in many quarters you could say this was negligence on his part in choosing to do what he did to move this car we might even say that it was stupid to do it this way in these circumstances but what the plaintiffs burden is to show that this was actually beyond negligence and was a conscience shocking activity where what he did was outside the scope of what was a legitimate interest in getting the car off the road or that he intended to injure them rather than just get the car off the road we just don't have proof of that or would that go to the jury that would be an issue of law as to whether or not there was a factual support for a finding where reasonable jury could look at these facts and say well he wanted to injure them not just to get the car out of the ground three kids and i gather some of the elderly woman get three witnesses who say the car lifted or once it actually went in the air so you got a certain amount of force being applied now once but twice i'm there are circumstances in which i mean i get well we keep going around the same way but even even if you're recall that there is even even testimony from the plaintiff that between hits the officer came up and said what are you doing i could have hurt you i didn't you know obviously to me i'd suggest he didn't intend i'll do it again suggest that we may see it stupid sitting here in hindsight twenty twenty but there's no case law that would have said that ramming a car out of the road was specifically wrong i don't really have i understand you don't need that you don't get so facts for civic that the only way a plaintiff can avoid qualified immunity is to find a case where it's been denied under those facts right but the court of sprinklers also repeatedly caution that you can't be so general in your description of  only if the officer had a purpose to cause harm that is a question of fact and in this situation the plaintiff was deposed and in the plainest deposition the court may recall that there was a wanted to this incident and a part two part ones where the officer gave the plaintiff a ticket and given a ticket there was a conversation back in four where my client was dissatisfied and felt there she was pulled over for racial reasons and she also indicated that she was going to make a complaint to the police department tail his superiors and go to the mayor and based upon that we're saying that that's part of the inference should be given because that's part of the reason why the police officer wanted to current harm you walked away from there right i mean and it seems to me i don't i don't know what i'm why i understand what you're saying i partly agree with you but also i think she qualified at that moment the fuse may have been lit by her reaction it didn't go and it burned itself out ok to my mail but go ahead i just see where the crux of our point part of the overall background of the in a relationship between two people neither of whom function in my view as an adult o i would just make the reminder very quickly that the purpose of immunity presumes that perhaps the person seeking immunity didn't act in the best light is judge carr said perhaps lack of common sense on two sides perhaps negligence but again those won't reach the threshold that has to be reached before substantive due process if we say as the courts obviously have not because they've made the decisions of matter of law if we were to say well it's always a jury decide whether it was negligence or something more than the immunity it really becomes meaningless in the substantive due process context and the supreme court is adamant that subset of due process is not to be lowered to that level where it becomes a catch all a de facto tort excuse he in fact said please put it in the file any wound up he struck or with the kind of force that he did and the first time it shoved it one way and he shoved it in a second way but he's sort of taken a step that is protected he was just he hit the gas too hard or whatever ok and that would be a much easier case then and i do think that no rational  car seems to me there is a risk i mean given what the witnesses say and i think it's up to the jury to determine how plausible some of that testimony is current with the witnesses but all three said well we didn't know what he said and the plate is a count as he came and said you guys i could have hurt you so obviously there was a concern in between those hits that he didn't that the only inference is he didn't intend to please don't make me hurt you now obviously there's a miscommunication but there's no case list