amendment rights when he handcuffed her and director from the public defender's office into the courtroom and i kind of dragged her physically moved her down the hallway is that fair to say i want to make sure i got the facts right my understanding is he had an arm on her arm and hand on  so she wasn't direct ok so i when you're moved by police i apologize for their rhetoric nevertheless he was protected by the doctrine of qualified immunity the doctrine of course is set forth and saucier versus cats there's no question in this case about the first part of the first part of the test which is that mr mutes fourth amendment rights were violated as respondents have conceded as much the question in this case is over the second part of the test  whether a reasonable law enforcement officer in deputy's position would have understood that his conduct was unlawful given the situation that he confronted now under the doctrine of qualified immunity a lot of force an officer is entitled to the benefit of reasonable mistakes of fact and reasonable mistakes of law in this case definitely made a reasonable mistake a fact we conceded and that was when he heard refere disputed is disputed whether he was authorized to handcuff or not because the person who was know who has the burden to show a lack of qualified immunity is an affirmative defense the burden would be on the defendants in this case the respon establish qualified immunity to qualified immunity so the question of constitutional violation of to establish constitutional violation would have been i was the first part of the  of the qualified immunity defense that they were asserting the affirmative defense that they were certain so the respondents had the burden to show that deputy was authorized to act as he did we did you had the burden to demonstrate that he was operating under color of state law to  and because he was acting as a bailiff he he was conducting his duties as a bailiff and he was purportedly following his judge's orders he was in the in the course and scope of his duties let me let me go back to what your client did in this case your client over a period of time refused to respond to various communications that asked her to return to the court correct honor she heard at least one that was ok yes is the answer the judge then says to the bailiff go upstairs and see if you can get her if not bring back to supervisor correct when she gets there your client says if you want to take me back you'll have to put me in handcuffs at the time she was speaking directly to her supervisor she said i'll be there in just a minute the handcuffs comment came at the end of the exchange between her  deputy said something like the judge wants you there right away and she said if you want to take me back you'll have to put me in handcuffs correct ultimately yes and then he took her back in handcuffs yes when he got to the court room he said can i take the handcuffs off in your client said no no leave them on that's also factually correct ok so let's talk about periods of time your client can complain she surely can't complain about anything after she reached the courtroom country i disagree i believe that the length of time you're going to remain in custody is not up to you as the detainee it's up to the law enforcement but the law enforcement officer turned to her when she came to the courtroom and said i want to take the handcuffs off or would you like the handcuffs off in your client's had no i'd like to keep them on  judge that is what the record ok so how is it that your client can complain about having the handcuffs on when she reached the courtroom because again i think it was up to the law enforcement officer how long he's going to detain her once  enforcement officer did she say to her i will take the handcuffs off and she said no was he supposed to forcibly take them off or at that point i believe the record is not that he said i'm going to take them off he said shall i take them off and she ultimately said don't ask me  you know he's he's the he's the sheriff it's up to him it's not once you're arrested once you're detained you lose the liberty to end the confrontation was detained in the court room where she was supposed to be before the  judge legally detained at a place where a judge had asked her to be at that time well i believe if you're standing in handcuffs and you're not free to leave you're legally detained are you detained right now no i'm free to leave i choose not to help if you are f e i think that i wasn't he would be protected under quasi judicial immunity because he would be following a court order he would be following a clear and direct court order that's not what happened but that's you're giving away way too much is the factually know what we're talking about qualified immunity the officer the question would be whether the officer reasonably mistook that to be an order by the court and i think in this case well that's  that's that's what he heard that was not in order to him he mistakenly understood that to be an order he wanted you want to tell him was go upstairs and get her supervisor there was no water to him well the judge did as i understand it he was told maybe i'm wrong about the record but i've read it as i understand it the judge said go upstairs need to bring back even if he won't come back bring back the supervisor carets that was finding a fact fifty three that's what deputy lee understood the judge to have said and again whether or not the judge said order no he understood that he was ordered to either get mr new or if he refused then bring her supervisor to explain what was happening the supervisor standing right in front of her i'm sorry for the client said if you want to bring me back you've got to put me in handcuffs how did he wouldn't he recently understand at that point that that was the way he was to bring her back he wasn't following her direction he was following the order of the court which which was clear what to do if she refused to come if she refuses then bring the state jones who was directly but you didn't refuse she said i'll come in a minute but if you want to bring me you've got to put me in handcuffs we didn't refuse then what reasonably objective law enforcement officer would think that he could put her in handcuffs if she hadn't refused how about a reasonably lawn force officer to whom a person that said please put me in handcuffs if you want to bring me back but if you what if you'd said please shoot me if there's a law enforcement officer the not be reasonable the extent that a lot of force an officer can act under color of law and do things like put people in constitutional custody put them in handcuffs is not up to the person on the street it's up to the law enforcement officer to determine the extent of their authority counsel and your time is on that i just have one question is there any dispute that there were fifty two cases on the docket that morning no no there  courtroom when being ordered to well absolutely it's all over the record your honor she was completing an assignment for missed a leg or a challenge for a supervisor who had said complete this before you go because once you go back to the court room you're probably going to get sent out of this courthouse that's in the record see what your client was doing was choosing to abide by a direction given by her immediate supervisor in the public defender's office as opposed to a direction from the court to be in court on time to handle the fifty two cases that need to be is that your position really what's in the record your honor is that nobody ever communicated to mr new that the court had made an order definitely never said the court has ordered you to come back he said you have to come back now that was a normal interaction he did not say the court has ordered you to come back he never texture that time period right you can see the text actually she got e mails i'm sorry she did not receive any on this day i'm going to calls that you get there was that she heard at least one page that's all the the and the telephone explaining the records hers that she heard the the telephone ringing in our office again a normal procedure thank you i'll be honest i'm not sure show up at the proceedings i don't know my my belief and i apologize because i don't know the full scope i believe referee is more the designation of judicial officers that handle even though you don't know whether they have contempt the other part of the problem is i think it is uncontested that even if you know even if they turned on the recording even if they had been on record which i think it was not quite clearly it wasn't communicated to ms didn't know not not that yes he took it on himself it's a fact you can just really say that he put her head on he was not ordered by anybody to do it he was not generally or that i mean but that's specifically mean was he generally said some sort of a strain you know you don't have to use handcuffs you could use a rope you know you might you might  amuse decided not to come which is to bring the supervisor he decided to adlib and put handcuffs on her now because that that deputy really believe she was refusing the district judge found otherwise and it is a i'm sorry so you think his directions were if sheriff uses you bring the supervisors but if she doesn't  more to it than that because there was a concession at both but you can see that that wouldn't do it right the fact that she says put handcuffs on me would be no more effective than if she said i'll come if you if you point a gun at   that would be helpful to us because that's what we're trying to figure out is supported or not so what did the district court find the district court did and as far as i recall make any specific findings regarding whether in the abstract the use of authority well i think you answered all the questions so far as of course he had no authority to put her head well the problem i'm having is the separation of the handcuffs from the detention and what he didn't have authority for what  district court found he didn't have authority for was to go and bring her back to the courtroom ok we all agree he didn't have authority to do that it follows they didn't have authority to do that by use of handcuffs correct but cross suggest that the judge was wrong so tell us why you think that mr levy deputy lady reasonably thought he had that authority when in fact he did not well part of the tell us why you think the judge was reasonable in a factual finding that deputy lee reasonably believed he could do what he did because the plaintiff conceded that consider  had the authority to bring the plaintiffs to the courtroom he did not use excessive force but that's a step a different question i had to listen to the question i asked you the judge found the deputy really did not have the authority to bring her to the court that's what the district judge and so he didn't have the authority the question is whether he reasonably believed he had the authority and that's tell me why because if he didn't reasonably believe he had the authority let me ventur guess you lose so tell me why you think he reasonably believed he had the authority and was entitled to qualified not quasar judicial but qualified official i mean because he believed he had the authority mistakenly to bring her she asked part of that he believed he had the authority to use reasonable quantum of four k why was that a reasonable assumption on deputy least the part the district court found that want to know what facts support deputy lead reasonable belief that he could do what he did well but that goes the plaintiff's concession could have supported his already if the if this court for the qualified immunity issue which is where it becomes relevant and i'm asking a different question surely at the time the deputy leader brought your client back to the courtroom he didn't have the plaintiff's concession it is mind that occurred many months later in court tell me what what deputy leader knew that led him to believe he could do what he did he believed it was necessary to tell me what he knew tell me what facts he knew that reasonably led him to the belief that he could do what he did he believed he had been ordered to bring this to move back to the courtroom he believed that mistakenly he what he knew the facts that he knew was that the judge said go get the supervisor that's one fact ok well it was if if if she refused to bring to bring her to bring the supervisor if she didn't refuse ok so that's fact one he walks up stairs tell me what facts he then learns that lead him to reasonably believe he can put this woman in handcuffs that we have to determine the judge made a finding here that he reasonably believe this and is entitled to qualified immunity we have to determine what facts support if it's if it just was it's reasonable were as good as the district judge in figuring that out or trying to figure out what facts degree of force that's used and what i'm talking about his is reasonable misunderstanding if there was one at the end just to tease out the district court's order that he reasonably but mystically understood he was to go get her bring her back well i isn't the question without he reasonable but misunderstood the order in this understood that he had the authority to go get her setting aside that the degree of force or what is your position now you really have confused me about you know i the problem i'm having and i apologize you know if i'm not making it clear is that a suit let's assume that he had the right to bring her back to the courtroom the plaintiff said that the amount of i think she volunteered for the handcuffs she said please please put them on me the question is whether or not whatever constitutional violation that may have occurred when he took her forcibly with  gentle force from the public defender's office to the court room was something he reasonably understood he was authorized to do well and so tell me that that's the problem well at a problem and i apologise for not understand the answer to that is mr moutet made it clear that that was the only circumstances under which she would return to the courtroom at that time but why did he reasonably understand that he was authorized so we're back so what if i mean so what if you're asking in the context of why did he bring her back at all right the question is two things the judge might have said one of them is tell her to come the other one is bring her correct this and judge said she didn't say why why was it the question is why was it reasonable for him to understand the referee's statements implicitly bring her back not simply go and stand in front of her i think the totality of the so they're not simply communicate to her say look the judge wants in court you don't you say that the judge once he just says come back but that's one thing you can say look come back and then the judge than that was in the back of the support that to be a reasonable action has fought he heard the referee explicitly order whether it was a formal legal order or not he heard her say the words i order that she would not come correct so why don't you focus on what happened the hopeful for us if we focused on the record when he gets up there he has a conversation with mr mustafa not yes he does what is that  conversation you need to come back to court and to the courtroom she says words to the effect well you know i'll be there in a minute or i'm doing something else and then he says what he repeat you need to come to the court room and then she says what i'm not sure how much back and forth there is before she eventually says the only way i'm coming back now is if you arrest me well i am a weatherman hamp if you put me down because i don't believe that that's  give rise to a reasonable belief under deputies part that he could bring her back right yes i would any other facts that were missing here other than the one the judge kristen pointed out before that the that the deputy thought it was urgent because he'd seen that this would be as it was a busy calendar and this was the last day for this case so it's beyond that because the deputy didn't just wander off to find her he specifically asked the referee should i go find her that you know for him to do that that meant he was leaving his post he was leaving the room without injury to get back to work and what's not to is that but the judge told him to go i think it's reasonable for what i'm not asking what is reasonable on this guy what facts would lead him to think it was that's the fact that the fact that the referee told him to go she didn't say go and find her and ask her what's going on he said go and had this a little bit wrong on page twenty three well and sort of right there but what the court found is she said if you want me to come right now you'll have to arrest me close quote or words to that effect and then he said if i have to  respond if i have to and then the moves asked are you going to handcuff me so she actually said the things she actually said both things but getting back to the point that we were because you're just answering this this exact question what about this gets gives rise to this reasonable understanding on his part definitely was aware of the necessity for getting something resolved regarding this ongoing case your honor pointed out heavy caseload the judge had made a referee is deputy least thought you in the depositions of the people who were there in the office when he was having this exchange with her which i think would have included her supervisor if anybody remember that deputy really said to her that the judge required her to come back to the courtroom now i honestly don't recall i apologize it doesn't spring to mind but that doesn't mean it's not as if he did testify that he said something like you need to come back right now and now the judge found that as a matter of fact he just refined it as a matter of fact and that but the but the confusing thing to me is that the judge also found that the move was confused about why she was and she said it might she might have been under arrest for a completely different reason correct that that is what findings so that the inference is that no one in that exchange in the office  would imagine that this was an awkward situation for them that assuming they continue to work together somehow got resolved but i don't know of any apology i don't know of any ok thank you thank which is this business about the concession and i think i think the course comments made clear today but the concession was that i had made to the district court related to the excessive force claim only and that was if there had been authorised to act then it was probably reasonable to do what he had done it was only to the excessive force claim and it was if it was a hypothetical that didn't exist as the court noted he was not authorised to act so so the concession was is that if he was if he said misunderstanding was reasonable the amount of force he used was ok if he was authorized to act and were no no no that's a separate question that i think there's one more question to you have one more the only other thing was counsel's comment that definitely understood something had to happen well yes something had to happen and referee surely had made clear what had happened that if mr news refused to come in bring the supervisor and tell me what's going on referee surely understood that mr music was not one to not come to court unless there was a good reason she understood referee surely these people all work together all the time understood that something must be going on that's why she set up that exact condition if mr beasley fuses have her supervisor who was standing right next to her come in and tell me what's going on how do we review the district judges finding that deputy we reasonably understood that he was authorized to do what he did that's actually a holding of law your honor that's the act up portland versus bagley case the reasonableness is the question is is an issue of law that should be reviewed to novo is it's an objective determination