i believe the case has been rather thoroughly brief and i don't want to retread ground that we've already gone over in the written submissions absent questions from the panel i just want to say i think the most telling segment of the district court opinion is where the judge says that the comment by robert service and that was overheard by the dispatchers that i need a ride i'm going to kill that bitch was something interesting i can imagine the howls of protest from all corners of the base city community if they thought their police department simply regarded such a declaration heard by dispatcher is it something interesting it's something alarming it's something that the officers had no choice but to respond to in the sense that there was clearly a declaration that could have meant a murderous felony was going to take place and they had to respond accordingly now i think the judge in the district  court gave far too much focus to the fact that ultimately kishwar brown was course innocent that had nothing to do with the statements that had been made that had been heard by the dispatcher take me through and explain can they be the  basis for the reasonable suspicion in this case to stop the media call this wasn't one of those situations where you're getting an unknown tip from somebody this is a situation we've got our dispatcher on the phone with an open phone line where the original caller had left the phone off the hook and the dispatcher is listening of course to the person in the house which we now know of course was a drunken robert surges and who is just rambling but the first thing he talks about that is overheard through the open phone line that's reported by the dispatch of the officers is he's barricaded in the house i'm going to hide in the basement the police are coming don't let those fuckers in the door then after that seems to have passed the talking with a male i need a ride and need a ride and he's of why do i need a ride i'm going to go kill that bitch now nobody knows what really the context is this is all they're getting on the phone but we've got a male voice who's first very kidding his house against the entry in arrival of police for who knows what reason who's now saying i need a ride because i'm going to go and kill a bitch and at that same time is when officer ross gets there with his  respond to the original call like that and see understand the time frame because i thought by the time she was pulled over the nine one one operator had was at that point hearing still in the home speaking what the officers of god is the timeline is that after the kids called to report to their surgery you know uncle robert's acting like an idiot you need to come home lesley is brought home by kitchen of brown they come into the driveway only there for a moment i'm helping lesley in she's got a baby i take the baby and set the baby on the floor and there perhaps a minute before i get out of the car and leave leslie has just gotten into the house at the point when when when kishan is leaving them in the car that's  officer ross has arrived and has seen this car leaving what he reports is now we know there was someone in the house who said i've got to get her out i'm going to go to kill that bitch he arrives to see the car leaving and the officers officers are already or you know converging on the site so they start pursuing that car they haven't you know the as i see the car leaving here's the streets on and they start pursuing that car just ranch was asking about didn't the dispatcher know at that point in time and was still in the house that the call the nine one one caller was still in the house well there was there were male and female voice in the house at that point it's not clear what they're talking about it's not clear what the whole timeframe is but what the officers had already begun their pursuit of the car immediately before leslie got in and was able to have conversation with the dispatcher to overhear it was soup down the road it was already a member station that the dispatcher overheard it was the continuing statements on or the cases rely on this collective knowledge reptilia so you've got the collective knowledge of the taney that you're representing and that collective knowledge includes the fact that the nine one one operator still hears the same drunken man speaking from his home location while your officers are pulling over and pulling out right someone different  i don't know how can how can that not vitiate reasonable suspicion the officers who are making the stop have already committed themselves to making the stop or in the process of making it before it's clear that there's still that other voice if you look at the time frame that background voice where you hear they were pulling it over in the v p on the on these nine one one cd i think it's one thousand nine hundred eighteen on that time they're already in the process of doing th they're not getting more information from the dispatcher their point they're stopping the car they are converging on it and stopping it and they don't getting that subsequent conversation that's going on apparently between leslie and robert in the house the nine one one operator is not conveying any more information to the unit she's still hearing the man in the house i didn't see any indication there was subsequent you know a little hard to make out but i did hear that there was a subsequent transmission the officers what they had when they testified was we had the been told about the the barricade in the house skins the police the fuckers who were going to come to the house and then the we're going to kill a gun going to go and kill the bitch in this is why we're chasing the car and this is of the collective not why doesn't the collective knowledge doctrine undercut your case if the nine one one all operator knows he's still in the i don't know that the nine one one operator knows specifically but that's the same number there are two male voices there is a young man and i was recently this sign guy continuing to speak correct i mean ok so well when we can we can see that we can hear carefully to the voices and i listen to the cd over and over as i'm sure the court do because i know we've got the cd and obviously you've heard the tracks you know we can all sit here and look at it after the fact but in the or in the time when all this is happening in a big fat hurry officers are trying to respond the racing down the street to get to a house and they hear there's a car no we've got to divert chase the car let's pull this car over at the b p and let's get to the bottom of what's going inside the house even assuming that there was reasonable don't you run into problems need to be what happened in the course of the stop in terms of throwing ms brown out onto the sidewalk  handcuffing her in a very unpleasant way in the back and so forth and the theory was that officer ross was chasing that male who was saying i'm going to kill that and instead they find that they they have stopped a single woman in the car which they quickly found out after they had got her but they kept her in the handcuffs for for ten minutes and when they were throwing her to the ground and so forth there were a number of police officers and just this one person in the car and apparently she was screaming according to her and you have to take the facts so that you could tell from her voice that she was a woman wasn't the male who was doing the threats if you could respond to that but ms brown's own testimony it's raining it's dark i'm five foot eleven one hundred seventy pounds as a one point two hundred others she's certainly equivalent to mail size she's got a hoodie a black hat she says i can't even see the faces the officers are converging on the car to get what they suspect is a a man who may be armed and off to do no good pull out of the car on to the ground and now again in go i would be incensed by that so would you but in the context of the time officer lewis testified that when he heard her voice he knew she was a woman which when they confused by that distinction right but they said we did not perceive her to be female at that point but soon it was hands officers they got her up and realize that they kept her in the handcuffs only ten minutes which is significantly less time than in the dorsey case and the c the other ones that we've cited in the brief that the court already knows about and you know that it's the sigyn the situation she said herself it lasted seconds before i was handcuffed and up it's at that point that all that kind of rough handling ends and they just make the phone call as soon as the phone call dispels their suspicions they let her go i mean they said they just let me go it again it's a question of the context we can't second guess what the officers do judge drench i'd like to address something that may help your questions my recollection of you have to take the nine one one dispatch log the incident log which is documented eighteen dash nine in the lower court record it was attached to the defense motion and lay it down next to a timeline of the transcript or if you're listening to the audio you can do it that way and those are roughly the same and we don't know that those clocks were centralized but you want to figure out the time frame you know the differentials the the tape the disk is eighteen days two and the district will record i think they sent it separately to this court and i thought that there was a transcript that the defense had prepared and maybe i'm wrong but you can still create a time line my position is that the answer your question is yes the dispatcher heard mr sergers and still talking on the phone prior to the stop there is about it make a difference if the dispatcher then did not convey that information i think it does and it goes to smoke versus hall i think the it is the collective knowledge issue but then again i don't think the dispatcher gave the officers enough information over the radio to create their level of suspicion in the first place but nonetheless yes i think the dispatcher has an obligation to pass along critical information and obviously what was going on in the house is what the defense is saying was so critical so yes she has an obligation to pose along as the circumstances change i guess the the problem that i have is isn't there enough reasonable suspicion under terry to stop the car honor i would very reluctantly agree that if she would have been moving in other words what we conceded that it wasn't a fourth amendment seizure for the stop because she h would have to be upheld ok i did so but but you're but you're correcting me factually that she actually stopped the car in the b p gas station before the police forced her to stop because she thought she was being followed or whatever that they were that they were going on this search for somebody else actually she thought there was a high speed chase ok comes off of a side street and turns north the police messed up a communication and they went south on that main highway and in her rear view mirror she sees the lights then she sees the u turn of all of the marked cars you know officer ross was in an unmarked car so she sees the u turn three marked police cars a few blocks behind her and she wants nothing to do with it so she pulls over and and gets up on that apron in the b p gas station ok so so so far she has stopped  we're obviously taking all the facts in light most favorable to your client she has stopped would you agree that the police would be entitled to ask her questions because they were going to stop her and try to figure out what is happening in this house where this nine one one call came that included this i'm going to kill the bitch language i agree that then walking up to her and asking her questions is not a constitutional violation so really the issue is the amount of force that's used to force her out of the car onto the ground handcuffed her and then keep her income for the ten minutes yes and i'd like to exploring why in my brief i objected to jurisdiction on counts two three and four and not count one and that is because there is no factual dispute between the parties up to the point where she was grand and what i'm saying is that the manner of conducting that terry confrontation with the vault garrity the guns aimed at her head the screaming and the surrounding of the car before they even touched her i'm saying that that was unreasonable based upon the tenuous and vague nature of the reasonable suspicion they had and that gets us into the smoke analysis of you have to look at all of the circumstances and then the russo case i cited is the segment  defense indicate sward so fast how can you do a segment of the segment that segmented analysis when something only lasts a few seconds that's their training that is what they're supposed to do they have to react to the circumstances they're faced with in this case we had some fairly experienced police officers with some significant training reaching all kinds of conclusions on their own above and beyond what the  dispatcher is giving them our police officers can be cynical they can be overly cautious are given that much but they still have to have an objective baseline and into reach into these speculative conclusions that there's a kidnapping there's a hostage situation inside the house i just don't think they're bogus batch information supports that even the statement that the dispatcher relayed is urgent that he i'm going to kill that bitch and given that there was reasonable suspicion to stop the car why wasn't there a nudge for the officers to order ms brown out of the car and have her down for weapons now because at that point goff is there say they thought it could have been a male was there some other fact issue that would make this not appropriate for qualified immunity i may be wrong your honor but i don't recall any mention of weapons being relayed to the officers by the dispatcher but in a terry stop normally the police are allowed if they have a basis for concern about their safety they're allowed to do this limited pad down well and in a reasonable articulable suspicion to for the stop and then the same standard for the pat down but separate facts when they can be the same but there has to be a second justification for the pat down we have three armed officers walking up to the car i ask them all was there enough lighting did you see were you comfortable with what you could see they all said or no tinted windows i'm assuming your weird street lights nobody remembered exactly where they were but they said there was enough light but one officer i think is russian ak walks up the passenger side according to our client he opens the back door sticks the gun in the car at her head but don't light should've come on then he closes the door and then walks around to the left front corner i asked him if you were you able to see him did you see bags did you see weapons did you see anything and nothing and he could see her hands she kept her hands where they could see them so the problem with the pat down the of the ability to pat down is that from that the terry stop assuming it's justified nothing is going on to increase the need for the pat down they did they simply it doesn't ever get there which is the same thing i did and in response to assault battery my are going about lack of probable cause for the of the good faith immunity under state law they don't once they get have contact with her nothing happens to increase the reasonable articulable suspicion that you may find they have in the first place did they i asked them all i was very i knew that was very important and none of them ever said a word that anything increased their concern once they got out of their cars and marched up to her well they seem to make a lot about her physical size she used to work for well she still works for a company but she was a furniture mover she worked for two men in a truck so so there their point is it was be reasonable for them to think that this person driving this car was a male no i don't i think it was objective or reasonable to say that they didn't there wasn't enough there for them to conclude she was a female i think the better position on that is that it was ambiguous and it was a question mark and i think that puts a burden on them once you say i'm walking into an unknown you can't automatically escalate to the top level of force before based on what you don't know and so i i think it would have been ambiguous her stature you know it was she was wearing a flannel and  perhaps a jacket on top of that so i don't fault them for not immediately recognizing her as a female but i i can agree that they had a basis to decide she was a male i think it was just an unknown factor for them at that point how do you distinguish dorsey i'm sorry your honor dorsey being well that's the that's the case that the defense primarily relies on they were see there was a seizure of man in that e i'm sorry i i can't i can't place the facts to the name and give us your best  smoke versus hall and i noticed in their reply brief they did and they were mentioned it's kimberly versus the uva five thirty or thirty four seventy five well that was an interesting case because it said the fact that in this situation unfolds quickly does not excuse the use of excessive force so again i think smoke is our best case now there was a case in two thousand and ten authored by judge moore united states versus m johnson six twenty f third six eighty five it's not exactly it doesn't exactly get into the excessive force issues but what it does have is a really good collection of reasonable suspicion cases where there's reasonable suspicion was found and reasonable suspicion was not found so i'm conceding that their initial contact with her was not a violation so for that reason united states versus maurice johnson doesn't help us on that issue but i think when you look at johnson and you conclude well if in all of these cases there was no reasonable suspicion then there is nothing to escalate those facts in this case to justify the further intrusion and the manner of intrusion to sum up your honor i would i would point out that defend camp in his deposition admitted that they were going to stop the vehicle to gather intelligence to allow us to know what's going on and that deposition is attached to the defense motion this document eighteen days five in the lower court record the page identification numbers one fifty six that's the real reason they stopped the car they wanted to gather intelligence about what was going on inside the house and that's why i say you know maybe that's valid under terry maybe and we all know it happens in search warrant cases that it happens a lot the police have a reason to go into a house and somebody moves away from the house and they and that's up held all the time but the manner in which they're detained is critical that officer wanted to gather intelligence and three of them did or that there at gunpoint while she's wearing handcuffs that's not the way the fourth amendment is applied reasonably in this country so i think the district court should be affirmed thank you thank you just very briefly i want to point out first judge moore mentioned that in a terry stop of course you can search for weapons in the michigan the long case that we said in our brief progeny of that say that in the situation of a car even if the person is not immediately armed they can always reach over and grab one so the officers are in a difficult situation not knowing whether there's a gun in quick reach hidden in the car somewhere in fact counsel just what are you saying then that any time that a car  there is reasonable suspicion to stop a car that the driver can be frisked i'm saying that in a situation where you've got your you're responding to a comment i need a ride i'm going to kill that bitch it raises the stakes to a position where it's certainly reasonable for an officer to think there might be a weapon in the vehicle when as counsel points out the officer is going into an ambiguous situation where i'm walking into an unknown was the word that was used that's when you really need to be careful but there might be a weapon secret in the vehicle within easy grasp i want to point out that there was also another case it cited in our brief because the verses city of bay city which is one certainly the officer should have been aware of which speaks where exigent circumstances the the fear that there might have been some need to gather intelligence to get into a house because somebody inside might have been in danger justified a forcible entry to a yard of forcible entry to the house and attention of the persons inside the building while the officers made sure there was no one who was in danger in this was certainly something that these officers would have been working off guidance from this court a published opinion i'd also note that while the officers have training as counsel pointed out no one is contending the officers are omniscient again they were walking into an unknown in a very quickly evolving situation that the kitchen of brown herself concedes took only seconds as soon as they had her up all the rough stuff ended they understood that she was a woman she certainly wasn't the man that had been hurt then they just had to dispel their suspicions as to whether there was somebody in the house creating an accident so i didn't they take privacy and cups at that point in time when they had her up and realized she was a woman oh that's certainly an interesting question but again the detention wasn't more than the other ones and the other cases it was only a few moments to make a phone call and she had three other witnesses watching the scene that they took affidavits and testimony from was that the whole thing lasted ten minutes of the month right but your your principle that you're suggesting that we should adopt is it's ok for the police to continue to keep somebody in handcuffs after they realize that the person is not the person that they were looking for when they recognized it wasn't a male they didn't know whether this person was a confederate of the male that they just didn't know who it was they didn't know what was in the house they didn't know who this was she's obviously a woman she's obviously not the man who is she they don't know that yet either this is all again the situations of ambiguities and unknown's and only taking ten minutes to solve the solve the mystery and dispel their suspicions is certainly a lot less time in this court has accepted in other cases again i want to just know one last thing is kind of an oxymoron that struck me in the whole qualified immunity field you know there's the two prong exam has there first been a violation of the constitution and then was it a violation of clearly established law the first prongs i think something rockeymoore because there's no constitutional violation obvious you don't need immunity in the first place but i think sometimes the way we look at those cases can can your detractors from the fact that immunity is there that even assuming the officers did make a mistake in the heat of a fast evolving situation even when they do do it wrong even when they do make a violation they have immunity from that because we need our officers to be able to respond in a reasonable manner to situations that may after the fact turn out they had no need to respond at all as it turned out in this case but they have to be afforded what the courts call the supreme court is called the breathing room to be able to make mistakes in order that they can react appropriately when it's necessary and even if this court is convinced that there has been a violation of the fourth amendment what the officers did in this case was not unreasonable in the circumstances or under the case law that we at length that they had before them at the time as to how they could react to this situation i would note one last irony in this case and that is if you read through the whole deposition of ms brown you see that she herself had been in various points a victim of domestic abuse and it's that sort of thing that spurs officers the need to be able to respond to situations like this panel's no further questions thank you very much thank you both for your argument th case will be submitted with the court called the next case