swarbrick deputy trammell and the sheriff of marion county and mr alston appeals those rulings because he believes that the district judge the central issue in this case the district judge took the set of facts as alleged by the officers instead of by mr alston so the state of events as mr alston saw it and as he testified in verified complaints and in his affidavit in response to summary judgment were that he was the victim of a domestic abuse event his stepson had threatened him and gone to a neighbor's house and told the neighbors that he was going to kill his stepfather and the neighbors called the police the police came deputy trammell and deputies swarbrick arrived at the scene  and arrested the miner son for for this event now mr also standing off to the side at the entrance to the subdivision when deputies swarbrick approached him in an aggressive manner asked him what he was doing and asked him what what had started walking back toward the subdivision at that point there's a dispute mr alston says he issued one obscenity he said f you i don't have to tell you anything and deputy swarbrick on the other hand said he started going through a list of obscenity they're looking at is the later event over by the squad cars when the younger miner son charged that officer swarbrick that was fought long after the this initial arrest so it doesn't say that he tackled them because he was causing a disturbance that affidavit and i would submit that that is just one instance in a repeated series of instances where the district judge actually took the officers word over mr alston's the big picture is mr alston says he made deputy swarbrick angry and that's why  with you that there was no probable cause for arrest at that point what standard to meet during use to determine whether the tackle is too much but it's my understanding that if there had been probable cause that may not have been excessive force do you do you disagree with that contention so if there was no probable cause than any use of force would be a constitutional violation so the tackle would clearly be out if there was probable cause mr alston still contends that a tackle was excessive when he's merely walking away and all the officer had to do was come grab him in hand so that you would apply the granby counter factors in that situation say well he had the authority to arrest but this course presidents go both ways that was in the ferraro case so it in any event but the nd point i want to make about this initial arrest is to point the court to gold the city of miami and this was the st case where this court dealt with this florida disorderly conduct st and the court walks through the statute and noted that you know since the seventy's the florida supreme court has said to save this disorderly conduct statute from constitutional scrutiny we can't apply it to anything but the standard fighting words things that are so excessive that they incite an immediate breach of the peace not just a crowd of the onlookers to get and and or their like fire in a crowded theater a false statement of some clear and present danger and in limiting it that way since the seventy's officer swarbrick was clearly on notice that this kind of behavior didn't give rise to a false arrest and if he wasn't gold itself gave him that notice because in gold a similar situation profanity at an officer not even walking away but profanity directed at an officer in a crowd of onlookers and in that case this court said we're going to give this officer probable arguable probable cause qualified immunity but then later in the opinion it says but it is clear that there was no explicitly that he threatened to urinate on the officer but mr alston's version of the facts his hands were handcuffed behind his back at the entire time so there's no way to make good on that threat under the officers version of event searched him and exposed him to his neighbors and the points i'll make there are the officers there we didn't know he wasn't wearing boxers well it's an actual plaintiff will you take the plaintiff as you find him if you cause him embarrassment and emotional distress with an illegal search it's just because he that's the way you found him and judge marcus in this liquor case does a great job of laying out all the different kinds of damages that parties entitle to an emotional distress an embarrassment or one of those c his cell phone and he can testify to that a jury doesn't have to believe him but he certainly could do that and he's testified that he did that the officers don't talk about the phone call at all only mr alston talks about the phone what mr alston says is i had my hands behind my back i was making a phone call i was removed the st time by deputy trammell who was who is not accused of any of the excessive force he's only accused of bystander like and he just search me and took my cell phone and my keys and then h the argument with swarbrick that's the nd time this war break comes around after that argument in the and then swarbrick comes around and tries to yank him out using force to yank him out using pepper spray in his face when his foot stuck and then using pepper spray again after he's been removed in the car from the car and in case after case this court has said that using this force using force against someone who is no threat who is already secured it is a constitutional violation and certainly using pepper spray just like in the vineyard case would constitute such excessive force so the quote that i would point the court to on this excessive force being clearly established is in hadley as in two thousand and eight and this court said we hold that a handcuffed and not resisting defendant's right to be free from excessive force was clearly established in february two thousand and two and i know that the headley court doesn't say handcuffed behind his back it says a handcuffed and resisting defendant which is exactly what mr alston was under his version of events what the pet there's  what we have at this point if mr allston were deposed the council could work through whether that meant bursts or three to five minutes of continuous spray or how that exactly played out but they didn't depose mr alston so all we ha his statement in his affidavit but again that's that's even after he's been pulled from the car after he's been pepper sprayed in the face in the back of the car just like in vineyard and so that's an even further constitutional violation very quickly i'd like to  point out that the defendants ask this court to affirm the district court deputy trammels liability and on the sheriff's liability judge i just did below and by the way i'll point out the judge had just didn't have the benefit of counsel for mister mr austin's been pro se until this this proceeding judge hodges said i don't need to rule on bystander liability for deputy trammell i don't need to rule on supervisory liability undermine our the sheriff's office because there's no constitutional violation here so in the vent this court reverses on these constitutional violations it should also send those issues back to be determined by the district judge in the st instance and i'll just point out that there is a current case going on it's going to trial against marion county for supervisory liability in the middle district of florida in the in the derek price case and that case is that five dollars cole and seventeen c v for twenty three dollars in the middle district of florida so this is not an isolated good morning and please report morning in forsyth here for the police the deputies as well as the sheriff of marin county your honor is it is our position that judge hodges correctly granted summary judgment in this case on the grounds of the false arrest claim and on the excessive force claim this is a case where mr alston was arrested for as you of the officers of the deputy state certain things happened the plaintiff doesn't refute that those specific things happen but states other things for example the plaintiff says they're on you can do that on summary judgment statement of the deputies that says when mr alston started spewing his profanities that incited the some of the onlookers to advance towards him that the plaintiffs never specifically said that didn't happen and that's a theme throughout this case for example i've got a question even if if you take if you take what the plaintiffs says that he says which is f you i don't have to answer anything even if for some reason that incited those words and again i think that's a false dichotomy that both could be true or they both could be false or one could be true and one could be false the fact that it may be true that he had probable cause to arrest the onlookers for obstruction doesn't mean he didn't have probable cause to arrest mr alst they could be both true and both not true or one of the other let's move on to the incident in the car what is your client's story about why there are no facts in dispute as to what happened in the car  stated that mr alston when he was in the back seat took the handcuffs from behind and moved him somehow around to the front and mr olson says he didn't know he doesn't mr also and to be clear i read his statements very carefully what he says was i made a phone call while my handcuffs were behind me he never said quote i never believe my handcuffs to the front he he's very i wouldn't use the word careful but the record doesn't refute the specific statement that he moved cut i think it is constitutionally settable for the deputy to then remove him from the vehicle to re handcuff him to make him then secure again which is what the deputy attempted to do and during that process he resisted  he there was an allegation that he attempted to urinate or stated he would your innate on the deputies and that could be a potential issue they need to take action to make sure that doesn't happen because that that's a battery i agree the officers can do different things at different times of the different circumstances but the question is whether the thing that they actually did was constitution constitutionally permissible this is your position that any time an arrest has hand and secured in the back of a police car threatens to urinate the police officers may use whatever force is required to remove that person from the car no i wouldn't go that far but i would say under th based on what happened here with him moving his handcuffs to the front and acting the way he did under the fatality of circumstances that was consolation for your position depends on on our concluding that there is not a factual dispute to many complaint that he made a phone call walked by retrieving his cell phone he used the word retrieve and but he does not dispute and i believe he says so while his hands are behind his back but the point is he does not dispute that he moved his and comes from behind him too much to the front of him the district court says in the affidavit attached to his response however plaintive contends that contrary to the officers version his hands remain restrained from being right that's my recollection so my understanding is the district court assumed his hands restrain from behind when he made this alleged phone call the court finds that the modified version and the response in concede right that was my recollection that the district court found it inconceivable that he could be handcuffed behind his back sitting  the officer says the money over that of mr because yes anyone can allege anything and theoretically say that happened but there reaches a point where under the president of this court things become factually in credible and not possible and once you pass that point then you shouldn't have to credit anything anyone says and i think this passes that point if there are no other questions i will reserve the balance of my time thank you mr force i thank you mr tuck we reserve some time for a bottle but joe wilson st of all thank you for winning a bet for me i had a bet with some of my colleagues that there were ends with regard to the on lookers on the st arrest i'll just make two points very quickly mr alston statements do refute that onlookers charge he says that they were over by the deputies cars not around and in any event even if it came together because he was saying there would have been more of a disturbance if he had been yelling folk trump than if he had been yelling obscenities at the officer and there's no question there would be probable cause to arrest him then it was regard to the handcuffs in the front i would just point the court