appeal on the basis of the district court committed reversible error in several aspects but specifically on the whole plane his arguments go to that there exists questions of fact as to the reasonableness of the oxers conduct in this case which makes summary judgment qualified immunity here inappropriate there are five arguments that i would like to make today and i'll briefly go over those st officer white one of the police officers in this case is not in total qualified immunity i'm playing just claims of excessive force because there is a question of fact as to whether mr henry was handcuffed too tightly and whether his complaints were ignored by officer white officer code of the another police officer in this case is not in total qualified immunity claims of excessive force as well because there exist questions of fact as the reasonableness of his decision to pepper spray the plaintiffs and the rd point i will be making is the officers are not entitled to qualified immunity for the rest of mr henry because no reasonable officer would have found mr henry's conduct violated the flint ordinance in this case mr henry here did engage in some protected conduct and there exists questions of fact as to the reason of the decision to arrest him and the finding of probable cause and finally defendant white here is not qualified immunity employee disclaim for failure to provide a medical treatment because there are questions of fact as to whether mr henry was suffering a serious medically in the back of the car and whether officer white knew that as to the handcuffing claim i have the court relied on the dash cam video conclusion that no violation occurred however mr henry did testify that he asked for the handcuffs to be loosened because they were too tight and they were hurting him in his deposition he did testify that it took three weeks for the cuts and scabs that he got on his wrists to heal in this circuit in the case of morrison versus board of trustees rescreen township has rejected the argument that bruising skin marks and attendant pain or legally insufficient to meet the physical injury component of the handcuffing claim and morrison also relied on plaintiff's testimony to establish those injuries the facts the court did rely on also do include questions of fact i hear mr henry can be heard on the like complaining that the cuss were cutting him and that's kind of how he said it and an officer white was driving the car and he did admit to hearing him in the backseat over the course of the over the course of the drive so am i correct before the transport to the jail a police station i mean the the complaint from what i can see from the video occurred while mr henry was in the back seat and before the to be removed but he didn't give a time when he asked them he said he thought he asked before he got there but did remember asking when he got there as well and then being really asked to stand at the at the station only evidence i saw him asking was this thing is cutting into my thing is there any other is testimony he did testify that he specifically testified that he did ask for the cops to be loose and broke but i mean did he clarify when no he did not clarify the timing i mean so why would we assume it was what we saw  dash cam was prior was during those fifteen minutes right here playing while he was in the car and our position is that officer white could hear him complaining about this in the car in the court  before the transport begins where he says this thing is cutting into my thing that would seem to be the request he may have the cops loosen or the they were too tight that there was not an additional requests now that is unclear from his testimony that i admit that it's not clear whether he said he suggests yes more than once but he can't really remember because he's mostly focused at this point on his eyes and the other symptoms that he's experienced in the back of the car i was trying to get a sense now if you know for the relative length of time the cuffs were officer should have heard that from these backs to him bullets assume that so that the you have the whole ride and it's not a long ride and he's by himself so that's a little bit of a complication in terms of making an adjustment i can imagine a little bit of a risk there when you look at these cases don't the involve more than one complaint like this i mean you know it's a short ride so you can imagine the officer on him by himself saying let's just get this to the station will deal with it  there when you look at cases where you have a triable issue of fact is there more than one complain or is that not true i mean your honor i have not found that to be a dispositive factor and i don't know i hear ya on that this is just that's one of the three elements that must be met to leavers norwalk and baynes refused to follow those cases because it found that they too narrowly tried to narrow what was a clearly established right because in facts and leave st norwalk and they said there was it was only a short ride to the prison or a short ride to the station therefore it wasn't unreasonable however bain's rejected that while i was on the clearly established portion of the law they still found that short ride didn't change the clearly established right that an individual has so well was a short distance to the right i believe the six circuit has rejected that as a dispositive factor of reasonableness is that the officer was by himself i mean with the answer be well if there's a problem you know stop the car and fix the problem that would be the answer your honor but in this case it's it's come pounded by the other elements that he's experiencing like officer white the driver does realize that he believes mr henry was in pain he knows that he testified that he reacting i would agree that he testified that that was the main source of his discomfort however i do believe he has presented evidence to meet the three elements of the handcuffing claim in this instance as for the pepper spray in the circuit you know excessive force is used when after pepper spray someone who hasn't been told or under arrest and isn't resisting arrest and this isn't gravy versus jury and here there's no evidence that the plane just rubber told they're under arrest in fact the only evidence that there was that an officer did tell mr henry he was under arrest he clarified in his deposition transcript after a co did not actually ever tell plaintiff mr henry that he was under arrest in this case as for resistance the district court relied on the officers testimony and the video that mr henry was resisting however i would like to point out that the video at this point only contains audio and it doesn't actually show up does it show resistance perhaps you could infer that there was a scuffle going on she actually cleared that up a little bit and said that he wasn't told he was under arrest and the officers just immediately stripped sprayed him and took him to the ground so i she did say that but then the next sentence she cleared it up and said well they never told him he was under arrest they just grabbed him so she did say that however i think in the context that wasn't necessarily her answer to the question in the video back to the video one thing is that you the video does evidence the officer is telling mr to put his hands behind his back several times that's not denied here however the video also you can hear one of the officers saying don't hit me and mr henry saying i never hit you and so right there we can't tell who hit who and i think that goes to the question of fact to the video where there's you know do you mean audio yes because the vic the main video in this case has video for the st half and then just audio for the nd half of blurry it's scuffling around so that's that was my point there at the  resistance the resistance isn't caught you don't see mr henry punching and kicking anyone but you do hear dispute effect another factual dispute right in the audio oneself someone saying they kicked in someone's or hit someone saying no i did not hit you so you're saying there's a dispute of it was not the full context of what she was trying to say that was relied upon by the district court and just one more thing about ms henry being pepper sprayed she testified that her eyes her for an hour and a half from being covered sprayed i think that's a little bit more then so a little bit on the face perhaps and she never testified that no one meant to spray her and the district court found that it was inadvertent and so there was no constitutional violation against miss williams however the court later distinguished by one circuit case that said that only goes to the th amendment and that there is no specific intent what's what's your your theory with her means your theory that they just were frustrated with her too and just once greater that she was standing right where they were spraying intentional and that she was right next to him he sprayed he sprayed at the plaintiffs and mr henry or miss williams testimony is that they sprayed us so she was so close to any spray that came from him was coming at her as well when i put it a different way  was not a tribal issue of fact about whether he should have been pepper spray does that eliminate her claim or does she have a freestanding claim that they gratuitously pepper sprayed her i think her claim would go to mr henry's claim as well because if they had a right to pepper spray mr henry if that was found and i think that would make it justifiable anything they used against her however because that's a question of fact i don't think we can come to that now your honour's i see that my time is up would you like to ask me any more questions or probably just wait to white in the issue of cuffing mr white testified that he was told the jail that the cuffs were too tight counsels reference that her client didn't specifically say when he said that they were too tight we have the we have the in the vehicle which are not clear as to what they are and do you think you can hear from the dash cam that he's complaining about because i don't think those statements are clear the cutting my are i mean there are some his testimony is they have older cars that the windows are down that with noise you don't hear all that much in the back but he had been hearing the same noise since he put him in the vehicle because he is trying to cure himself of mucus and  s and in tears or whatever from the c e o spray but there's not a defensive statement of record of him stating that i told the exact time that he told them when the cars were bothering him and officer white says is that the jail when we took him off really soon and then the other utterance of the vehicle are not definite or certain and not heard so i don't see where there's a fact question made there at all because the inference i come from that the cutting my doesn't equate to the handcuffs are too tight not a specific statement any time that handcuffs are too tight obviously you know he's reacting quite significantly to the c e o spray with regard to clearing him softer mucus and spit but he's spitting and working in the back of the vehicle so it's our argument here that there's not a contest of next question it was he was crying that they were too tight that they were cutting into a skin right i don't recall that but i remember mr henry complaining of his hands being hurt from the handcuffs and you're right my point is th cited in his decision because later white clarifies it in later pages i don't know the pain site at the top of my head but what clarifies it that that is what i didn't verify that he was made at the station and yes yes said this to them the officer says i didn't hear it you get to go to a jury if the plaintiff says i told them this but i said i told them this that setting a time parameter white says yes he told me it was at the jail there's not a fact question there they're entirely consistent there's also there's no issue between those two statements and then with regard to the matter of the vehicle statement there's nothing clear in the vehicle uttering in muttering there's nothing saying that the handcuffs are too complaint was specific enough for a reasonable officer to know there was a handcuffing problem that strikes me as a potential tribal issue fact but i think the police officer has a real point is not in this instance as you're really saying you don't it the only evidence with regard to him clearly complaining that my hearing custard officer bite identifies as having at the station but aside from that there are those are the couple cases that it's not for a long period of time anyhow the record and when he's out there this whole time and what happens is after the final matter that he hadn't already been told unconcerned about the neighbors and the like going on and again with regard the light the plaintiff never says the light didn't go on he said he couldn't say either way but the light is identified as going on so he's warned they could have arrested him other officer says he didn't see any light going on well he didn't proving a negative that is how do you say i didn't see any light when there wasn't a light right there wasn't like a light test i mean nobody was filling up paperwork for it it was simply a matter of what you saw and seeing somebody flick on a light switch on you know it someho in an area is i mean i don't see where from what you know everybody sort of watches the believe videos like a movie there's a neighboring house where the lights on all along it's like a porch light right if you look at one of the  repeatedly and repeatedly had been told to quiet down you're going to disturb the neighbors and he kept up well the as i understood it and help me here the one statement about the neighbors is the language is getting a little more aggressive but code just says i'm just worried about you bothering the neighbors that's the only thing i remember from the record about neighbors is that right correct and then  when after that but and at that point things kind of really really escalate as henry says i'm not bothering anybody by bothering people but is that is that what you rely upon as the warning necessary under  as a reasonable person i can't imagine anybody that would think that you could stand out screaming in your front porch like this or are you eleven o'clock in the morning in a residential area and  that it won't police police response and ultimately arrest when you don't stop after you've been warned so that the tests not whether or not it's a conviction the test is whether or not it's probable  cause which i believe is met by that and i can imagine way suggesting that they would think somebody would be arrested for that or that there wouldn't be some police action on it because this is a neighborhood go up to court his porch the plaintiff in his testimony there's no way to get him to testify cleanly when he realized that somebody was coming up to arrest him and then he told me you're trying to get me to say it's a surprise or something he would not respond to the question but ultimately his near the stairs in his shirt is grabbed by the officer and it actually gets torn off and then he testifies that this caused me to i was going to fall and then i fall toward into my house to go into the house and if you watch the video point they're up on the porch or progress and you see the video going into the house and the actual phone going in the house i think leaving his hand at that point girlfriend then picks up the phone screen this whole time and she screams how the throw him down and put him down but if you go through the time span it took a minute have to eventually affect the cuffing on him the video shows he's strong an d heavily muscled and this is true police officers that it took to finally get him down and white is a large guy and took him down to the ground but let me just go back to one thing this may maybe extra record but i had the image of this house where they're going to try to find the sister as being right next to his house but from the numbering it looks like there's a house in between does that did that come out sorry they do a but and it was for the sister of the you know i'll be going to understand that was so you're saying that seventeen million sixty one thousand seven hundred and fourteen are next to each other yes all right that's not what the map seems to show but that may be extra record but that's what the testimony is because they had been sweeping that house for fugitives and they came around to his side of the argus are they how close are the you're saying the yards are next to each other but of the houses fifty feet and the officers come at the end up according to williams that he's struggling the whole time the testimony in or not the testimony but the recording is very clearly given your hands and others oh stopping there's only perception he also said that he wasn't trying to flee and you know he chose to have to fall into the house which could be interpreted by fleeing is the police officers if if and whatever the story is to be bought but it still goes to the fa of police officers what they're believing that he's feeling and trying to go in the house alternately they do grab on the porch and they can't control him they spray him one time a short spray it's not sniper spray this stuff is the next what is were television there's some some authority suggesting you can't have retaliation where there's already probable cause for just arrest so we would rely on that but also aside from that there's not really any other dence that the police officers are reacting to this gentleman saying he's going to follow it complaint with the administration downtown again some there's never that clear statement ever being made that he's going to go to file a complaint against the administration downtown they testified at the retaliation for just bad mouthing him which he clearly clearly is i mean there is there is tension in the room he's been very nasty to them they may be being nasty to him but if the authority line saying that if you have probable cause for another rost then there's not the retaliatory with regard to those just you need to wrap up your time has expired good rethink any concluding remarks  think your honors i have just a few points now i would just like to point the court to the testimony on page two thousand two hundred and thirty eight dollars of the record which is officer white's testimony he actually says he can't remember if mr henry asked him before getting to the jail that's not a denial that's also mr white not remembering if you asked prior i just i just want to point that out and that's on page two thousand two hundred and thirty of the record here and  second i also want to point out that while the light went on and while this is not included in the briefing it is in mr henry county that his neighbor his name was rick and rick was not home that night and that is on page nine seventy one of the record and mr when he says rick is the neighbor does that mean a joining in on one side or the other it doesn't specify but he says the neighbor next door and that it would be the house i presume mr rick went in and was in and the weren't you assuming the houses were next to each other i did that was my assuming your honor and then finally one last point about well brother counsel said there is no evidence that mr henry stated that he was going to make a complaint downtown there's also really no evidence that he threatened any physical violence against the officers given the context of what he was saying he just kind of confirms that he did use the word threat i don't think there's any evidence that he the audio is not great on that i got to say i do agree with you  physical violence there and wanted him to confirm that he did say the word threat but that is just plaintiff's point of view on that and i am out of i have twenty seconds left so i would just like to point out that in this case i arguments this morning we do appreciate that the case will be submitted