you're familiar with our lighting system when the yellow light goes on that means your time is starting to draw to a close so begin to wrap up if we take you beyond the light then don't worry about it and just keep talking of long as will w pieces of evidence essential hints and a half one is his complaint which if you look at the record and if you look at them plain itself is not based on any personal knowledge whatsoever he doesn't anything for question at all and he admits really in the complaint self and certainly his deposition that everything in the complaint doesn't come from his own knowledge it comes from things his father told officers experts documentarian evidence all of which sort of fills in the blanks of what the surveillance video doesn't show if it is inconclusive in spots they're telling you and keep in mind graham the graham case from the supreme court says we're supposed to look at this from the perspective objective lee the from the perspective of the officers at the scene not in twenty twenty hindsight seven years later we're supposed to look at it from what they saw that evening they're telling you in all their declarations or sworn testimony what was going on what they were perceived keep in mind this is a person who would just slash somebodies throat bleeding to death over at the landing trying to leave the scene has the victim's blood actually on him trucks running they get a call this person's trying to flee the scene of a stabbing they show up they put they've put their get this is what the video shows if you look at two dispositive clips we urge the court to look at the video that's actually in the record because the two clips that ar dispositive here are camera five and camera six both of which clip three on each one clip three on camera five shows you the sort of the bird's eye view and you see the officers come up the two plainclothes officers kremlin anderson come up with their guns drawn and they're telling him they say that they're telling put your hands up put your hands up he doesn't even do that right away he's got one hand down he's got another hand up kraemer officer kraemer says he can't even see is other hand you can see him moving around in the cab of the truck still running truck and they're telling him put your hands up doesn't comply with them immediately eventually he sort of does put both hands up and they can kind of see him but he still doesn't get out of the truck at this point the other two officers show he's not getting out of the truck he's still sort of sitting in the truck until finally officer bias tries to open the truck to keep him on this is really close quarters we're talking about the jacks of a landing parking garage and it's a meter there's a pillar and then there's a meter and the truck's wedged in between and there's not a lot of room to move around here and this is a no one no one is  there's evidence in the record the me viewed in the light most favorable to mr henson that the police officers or at least some of them used force that was not necessary once he was compliant and why doesn't the video support that version of events you don't have any there's your honor there's respect there's nothing in the video that tells you he was compliant and subdued but there's nothing and there's nothing in the video that shows that he wasn't compliant completely with the police officers and version of events correct and that's where the officers are telling you what's happening that's why that's their testimony that's what they're saying in the and keep in mind henson has nothing to contradict that well doesn't you say nothing but you're saying he recalled nothing at all of the deposition he recalled nothing at all and he says that repeatedly over and over again he seems to somehow remember what happened at the land he remembers he thinks that he was maybe attacked by the victim and they had to stab him and things like that he remembers sort of the events kind of leading up to it but then he says you know next thing i know i'm in the back of a patrol car he literally remembers nothing and yet if you read his testimony says it over and over again so you have really a blank on that side and you have the officers telling you what happened on the other side every single qualified immunity case in this court where qualified immunity is perhaps denied because the plaintiff actually remembers and has a story has a version of the events maybe he has what maybe even has experts he has a version of events  let me give you one example that doesn't the video show that when mr henson fell on his way to the police car after having been subdued and he fell that one of the police officers  the torso and waist area two things about that your honor i yet first yes or no no now we don't believe that it shows a kick maybe it does it show maybe it shows a nudge maybe it shows he's trying to get him to get up but again that's a red herring because that's not even an officer that's involved in this lawsuit at all that's the officer that transported him so even if that was forced it wouldn't have any relevance to these particular defendants and the claims against them we don't think that there is force there at the at the bad best it's inconclusive exactly what that was but it has nothing to do with with the actual allegations in this what happened here was they pull him out of the car he's out of the truck and it's still running one of the officers actually has to shut the truck off course one of the things that hinson says he remembers here is that oh i shut the truck off and put my hands up both of those things are actually contradicted by oh he doesn't turn the truck off an officer does he doesn't immediately put his head they pull him out of the truck and keep in mind what they're seeing here they've got a fleeing murder suspect and they pull him out of the truck and what do they see they see a bloody knife on the ground on top of it this point they don't know they have a truck that so right they don't know if they've got an armed suspect they don't know if he's got another weapon on him there's certainly no clearly established law in this circuit that says they can at that point take him to the ground they need to get him in handcuffs amelius is busy parking garage got people walking all over the place and you've got officers who literally don't know what they have in front of him to get to obviously the most serious crime you can imagine and that's a factor under graham and they they reasonably would fear for not only their own safety in this close little quarters but the safety of the public they need to take him to the ground they need to get his hands behind his back as quickly as they possibly can when they get him to the ground he doesn't have his hands behind his back that's what they're telling you it's difficult to see that from the video admittedly because you've got a sort of a parking sign that blocks your view when you're watching it's for that first of all that cameras forty seven feet away you and so the burden shifts to him to produce some sort of material evidence to overcome qualified immunity he doesn't have anything he doesn't have his own knowledge of the event and he doesn't have a video that shows you anything that blatantly contradicts what the officers are tell argue that when you watch the strikes that are given to clearly it's pretty clear that their hammer strikes and their compliance strikes us with the option to tell you he doesn't have his hands behind his back get your hands behind your back that's what the strikes are for and you really if you look closely it almost looks like although it's hard to see it's hard to tell admittedly that his hands come up and they cough and once they cuffed him these officers disperse they're gone another officer officer james is the one that drives up puts his gloves on because  keep in mind henson is covered in the victim's blood i mean he's got it on his hands he's got it on his pants got on a shirt another officer puts gloves on and picks him up to take him to the patrol car everything after that the falling down and whether or not he kicks him or those are that's a red herring to this because nothing to do with what these officers did at the time what they perceived at the time was a fling murder suspect with blood on him that they needed to get in handcuffs immediately and they've got the public walking all all around at the time as well so this is this if if qualified immunity doesn't apply here it's literally an outlier compared to this court's other cases because in the other cases you really do have evidence on both sides and when you have evidence on both sides of course you have to take the answer in the light most favor plaintiff therefore hinson story would have to prevail if it presents material issues of fact you don't have that in this case you have nothing on one side you have a mountain of evidence on the other side and you have a video that really supports really what the officers are saying i mean it follows their story they fill in the blanks but it follows their story it follows their testimony and in whatever place it's not conclusive it certainly doesn't support what the plaintiff is saying it doesn't support or doesn't contradict with  been cloak will turn that's what he sustained he sustained some some abrasions on his face which our experts specifically said in her declaration were likely caused by rubbing up against a payment during a struggle whatever force was used here there's no evidence in the know she says don't bleed on me that's what she says too but he's not bleeding at the time in fact you can if you watch the entire interview for she submitted to three what to two separate interviews the first one is right after they get him there and you can watch that footage all day long and all you see is a plane if that all you see is henson you know kind of put his head down touch rubbing his face talking very lucidly to the officers never saying anything that he's in any sort of pain or he has any issues or that he's bleeding there's no evidence that he's bleeding y lucid and he's actually asking what happened and you know what i mean big trouble all those kinds of things during the first interview and he comes back first second or he goes to the jail and actually comes back and talks to them again never ever at any point to see complain about any sort of medical emergency injury pain anything this is yeoman's all over again this course if the court looks at their yeomans case this is lesser injury than that case and in that case you had a you had a particular suspect that actually showed signs of pain he said ouch oh my hand oh question as far as i know the status of the criminal cases there was apparently it went up in sort of like an ineffective assistance kind of a claim and i think the first district court of appeal may have said that some factual findings weren't properly made that he's not resisting and it seems to me that there are two sources of evidence that this one is the officer staff and two is the is there anything else other than the two things that we can look to in the record to determine what happened after you know at the time of the erratic he was never what hour for the ok i mean he doesn't have to be charged with resisting arrest because he's then isn't it the case that either we have to find some kind of internal inconsistency in the officer statements themselves or something in the video that contradicts affirmatively contradicts what the officers  my question though is what we've got the officers testimony do you think there are any internal inconsistency is among their their testimony that automatically that raises an issue of fact or something of that nature a look at that part of the video it seems at least clear to me that since he's being handcuffed at that point that is concerned with what the officer saw at least it doesn't the video doesn't contradict what they but maybe you think i've missed something judgment and qualified immunity should have been denied as it was but if there isn't then it should not have been denied and i think you're in agreement with me on that standard as understanding already had the hands twice you see it on the video that officer bias has the hands with no resistance as he's guiding them through the pathway that is that at thirty five forty three of the video he's got the hands no resistance then there's a straight arm take already had the hands already had the hands without resistance and they now want to say all of a sudden they had to use that level of force when he's on the ground surrounded by five officers who had put their guns away and were not showing any that the injuries are terrible and very unfortunate but from the standpoint of was he gushing blood or anything like that some of them seem to be scabbing over i mean some of them were still wet but they weren't testimony fills in the gaps that are not told to us one way or another definitively by the video the same thing happens with the testimony of your client and his wife fill in the gaps that are not told by the video at the station not i understand i'm just saying that if you're going to allow testimony to fill in gaps that are or not but i do think that mr leopard is right about one thing that a couple of the things that the officers say in their affidavits are contradicted by the video about his actions in the truck and getting out of the truck are they not i don't think so you're you know what do you want to tell the youth you think that he had to tell me what you think was correct about the testimony of the officers about what he did in the truck and what he did at doesn't the video show that he did not come toward the officer it's hard to tell from the video but i will say that officer bias is this to open the truck door and suggest extracted from the truck is just incorrect he is pulled out of the truck you can see that in the video and then when he's pulled out of the truck it does look as though he sort of pulls away and he's it looks like he's not complying with what they're telling  saying it looks like i'm saying it looks like and this is at least in some scenarios with regard to some of the facts whatever they may be the video is not conclusive it may not be conclusive and it may not show everything that the officers were seeing i mean to show everything that was going on but it doesn't contradict what the officers are telling obvious or bias is telling i'm trying to get him turned around put his handcuffs i didn't they didn't they have one of his hands where they took him down to the ground officer anderson took him down to the ground as he's trying to do with a straight arm bar take down yes that point he said you know he sees the bloody weapon laying there they hadn't seen as they hadn't seen the weapon before when he threw it out he says that he didn't he thought that it fell out of his lap regardless of whether it fell out of his laugh or he threw it out he said all the officer sealing on the ground right at this point they don't know if he has another weapon turns out he does it will not have another knife in the trigger my question only is do they have control of one of his hands when they  not have his hands free that he does he has not put his hands back so that they can put him in handcuffs there's nothing in the video that says otherwise in fact the video as judge rosenbaum pointed out looks as though he does actually eventually put his hands up so that he can be handcuffed keep in mind that when you watch it you can see that what the officers are telling you is that this is a brief struggle is a five second at most struggle to get his hands behind his back this is a very short duration no way that you can hit him five times with something a hand the flashlight whatever it might be in five seconds a human being can't do that you can use a dreich you move the hand back you strike you move the hand back so which is not when you want to that's not what you see you don't see strike move the hand back strike you see you see this kind of thing and when you can literally counted off it's the least under ten seconds more closer to five seconds and it is quick and  is the type of thing that suggests clearly that a struggle is going on to get him in cuffs and once he's in cuffs that's it all these officers say they have no further contact with him they they most of them resume their resume their patrol and you know clearly as far as the deliberate indifference claim none of the officers on the scene could have possibly deliberate could have been deliberately indifferent to a serious medical need when they left they didn't even have anything else to do with him the transporting officer officer jane says he gets them in the car he's staring out the window and he asked them are you again and again are you ok or k you seem to be ok you want to talk to see if they're trying to make sure that he doesn't want to lawyer he's talking to them eventually comes back for another interview all these things clearly suggest that they're not subjectively aware that he has some sort of medical need that they get into the hospital clearly there's no material fact in that class so we would argue there's no material facts qualified immunity you follow what this court has done in every qualified immunity case cited by both sides this fits