the district court's fatal flaw in this case in this decision bill is that it denied my client falsified immunity on the place excessive force claims under novel theory without having clearly established law to support that theory geragos was on notice as of august of two thousand and fifteen that his conduct might be unconstitutional and that most certainly there is no case law on point but of course on appeal this being challenged that is that's has nothing to do with the colloquy that you just quoted says it is the law and i think what what your arms are going to find is that there is simply an absence of case law in the th amendment context that we find ourselves in in this case that to the police station and i guess we're look it's an excessive force argument and there's really a fairly wide developed widely developed body of excessive force law arrestee in push him to the ground or trippin him or thrown him against the wall you know mistreated him you know between arrest and incarceration and you know how's and how's the you know facts here they got bounced around the backseat of the car any different then than that and when the my previous examples when those clearly be potentially excessive force cases i don't believe some of them are because the examples that you have just set cite seuss cases out of circuit where involved you know driving a vehicle you know how do we draw the line between a push and a shove which might be excessive force and you know a rough ride which you summary of the guy saying am injured would you please and go for me with my hands forward because i can't handle that that is that's my was that is that would you would consider routine handcuff stage now and the question is is there evidence to support his claim or say and he is saying it is not a mere handcuffing it is handcuffing and then being assaulted via the way the vehicle was driven and you're saying there's no case law but what about weigel the broad to ten circuit case which said the use of force and i think using the vehicle to administer that force is force if applied after a defendant has been subdued and seems to me that they're not mere handcuffing cases they say when you have subdued and immobilize a person we cannot fight back if you have ministry of force against him and he can't fight back and he is restrained whether that force is administered cases and smartly so because they did involve different factual situations again more egregious special situations either pushing or shoving that was always much pushing or shoving more egregious then taking a handcuffed man who can't suspect and putting in the back of the police car even without seatbelts that by itself in the case of this circuit has held that basically that's not the case here they're not arguing that they're saying that's we're not saying that that is a th amendment violation they're saying that plus injuring him by rolling him by driving in a unreasonable aggressive and violent way caused him to bang back and forth against the police car he wasn't just this is not an incoming  you have to decide what are the important facts to make something on point it's not that you don't have a red car versus a green car it is to me the important facts are fairly limited is the defendant restrained and unable to protect himself and is gratuitous force applied against a defendant who cannot protect himself when that force is not needed or even ordered argued to be needed to further restrain or to cause anything of law enforcement political and we have at least three cases with those facts where on point and whether the violation or assault is by a rocking and rolling police was slammed around in the back seat quote like a ping pong ball which we had to accept for purposes of or analysis and that my gallery asked morale as to slow down but morale is simply laughed at him and continued to drive recklessly now my question is is there any anything in the record that justifies much more troubled go about the nd issues be the the medical issue the failure to provide medical assistance i'd like at some point for you to address that about whether he was denied medical assistance at the police department and whether that claim for eight the minister violation is entitle to go forward district court said yes you that this is not a failure to provide medical help what because there is no right of the th amendment for medical assistance or what is your argument of the th remember really because because under the procedure under the has to be obvious and here is not a precise goal that is the essence of that particular argument yes that's will before you do the good will maybe a judge could which is utter equitable consideration could grant you more time but i'm really troubled by this allegation hour and then manhandled in this manner and then hauled off to the detention center resulting in his having two surgeries to his arm to his shoulder and all of that is objective really not enough oh posit that so you're not particularly given his admission that later when he goes to them coming attention so that he doesn't even ask for medical which is to shield police officers of personal liability for conduct which they did not have fair notice constituted of a violation of a person's rights but in this case your honour's we have deliberate conduct which we office down all of that was objective leon reason and you agree we're under the th amendment for this claim no your honor i will not agree with that and the reason for that is because as this court recognized in his state versus booker there sort of a great area between when a seizure is actually effectuated at the point in time in which mr mccowen at was the subject of this excessive force he'd already been arrested and subdued and so this analysis could be analyzed by this court either exclusively a th amendment analysis we were turned to the ground factors and we would consider things like for example the charges that were being lodged against mr mccowen we know clearly from this record that he was being charged with two misdemeanors would that matter i mean you could be arrested for murder and you can still have your excessive force claim sure your honor but when matters because engram versus o'connor the supreme court told us that is one factor to consider when we are asked to evaluate the situation the officer was posed with in this case that record is absolutely diploid of any evidence that mr macallan was ever opposing any threat of safety to officer what allison self or to anyone in the community it's devoid of any evidence that an officer when i just had to ask him more than once to comply even when it came to the field sobriety test when it came to any command that gave him the record is clear even by appellants own account and by his own affidavit testimony that mr m complied the entire time there was no reason for officer more obvious to objective we believe that he needed to use any more force than was necessary as he did in this context now if your honour's were to believe that this actually should be analyzed under the  amendment of course we have the additional factor which involves analyzing the motives of the state actor and even if you're on your nd sitter that we know from the record is your honour's noted that mr mccallum's affidavit testimony makes clear constitution and then argue that's clearly established but for purposes of the th amendment your same grammar says connor is the cases or th circuit case that you would supplement that with well not if not in the with the identical facts area that we have in this case but as your honour's recognized just eleven days ago in the end versus sibling case when the supreme court laid out opinions like poly versus white and well in next it never established that we have to present case law that is identical in factual scenario and that's precisely what appellant is asking this court to do appellant is asking this court to find that if there is no ten circuit case which has the identical facts in areas  person is being arrested he's already been subdued he's on his way what's the closest th circuit case one of the closest th circuit cases your honor is dexter versus more ford motor company in which this court distinguished a claim as  appellant has repeatedly mischaracterized is applebee's claim simply handcuffing and in that case in two thousand and four this court recognized that standing alone a tightening of the case probably does not constitute a violation of the constitutional rights of an arrestee however that coupled with reckless and erratic driving in fact could violate a person's constitutional rights moreover your honour's as the supreme court has laid out an apple eat does not have to present case law that is directly on point from the supreme court or from the th circuit but rather the weight of authority and as cited in our brief there were several cases from other circuits that would have put officer morale is at a reasonable officer  whether he the arrestee is posing any threat of safety to him or the community whether he's being charged with any violent crime and whether he's not complying as the supreme court having grant versus connor would have understood that putting him in the back of that police car him forwards versus backwards despite the fact that he notified him he had a previous in condition caused him pain coupled with the deliberate choice to amuse themselves by driving erratically and recklessly was unnecessary  under the th amendment i think your alternative argument what's the closest relatives case the provided fair notice while you're on what's important about the th amendment and i want to make sure i answer your question clearly but in in re booker this this court made clear that even when there is a distinction between the test analyzed in the th amendment or the th amendment when it makes no practical difference we don't have to have a particular case that is subject that turning to our nd point which i feel was largely an address but i like the opportunity to address that with the court and that there's been an argument that mr macallan because he had not been arrai was not privy to any of his th amendment or th amendment rights again in two thousand and four in the case of in great booker this circuit made it clear that the th amendment right to be free from cruel and unusual punishment and the th amendment care we turn to has become known as the astelin rule and that was of course the isto vs gamble case out of the supreme court and we analyze whether and arrest he informed the police officer of a medical condition and whether they displayed outward signs of needing medical care we know from this record your honour's and from mr mccallum's affidavit testimony that he in fact forced on a number of occasions his immediate need for medical care and we know from his affidavit testimony that even from the inception of this series of events when he's arrested he notified officer morale is that he had a preexisting condition that the handcuffing alone cause him pain then we know from this record that once he arrived at the detention facility here again cried and screamed and bag i don't believe not just officer but i was that the other officers who were there at the detention facility asking to be handcuffed in a different manner then we know that at some point in time between one hour two and a half hours that he cried and screamed out a plea asking for this medical attention so not question his subjective component of an arrestee needing to notify of his need for medical care what was he able scheme for was  lifted roughly in kurdish order but but did he ask for medical assistance because of the shoulder yes your honor and under his affidavit testimony which we know i beginning on page one hundred and twenty one of the record he voiced a concern for medical care now do you say why would i mean it's one thing to say we know little of that the people in jail are very unhappy to be there and many of them have all kinds of issues and and if every time you cry out for help hurting if that gives rise to a constitutional plane the jails are going to have no time to do anything else so they have at least got to be specific about what his medical need was and i was unaware that he said my medical need is my shoulder and there may have been a excessive force claim for a short but that's not what this issue is about the shoulder issue is not he's not saying you heard my children used excessive force my claim is you didn't give me medical assistance and so i just i'm trying to see how the medical assistance point relates to his shoulder as opposed to simply the handcuffs or to your honor the reason that it relates to his shoulder is because this is a series of events that alternately lead to the injuries to both of his shoulders which required surgery now one of appellants arguments is that the medical records in evidence showing the direct mechanism of injury are not are not a part of the record and that's probably because obviously we're at the summary judgment stage and  wrists were purple indicated to him that there was a need for medical care i'm not sure that mr goes to the wrist but but it shows that his wrists were hurt but the need for medical assistance is a serious medical condition and immediate need for now sore wrists or read or ready a brace chris may not need immediate cool media care and they knew within an hour he was going to go to a jail where there would be medical assistance needed and so the question is could be even gotten a doctor any faster other than to do exactly what they did was to send him to the jail where there was medical assistance so this whole thing that issue is very murky to me i would imagine your honor that that would be a palance position that if there was a brief delay or that if it didn't amount to a long delay then he was not entitled to that concert or if there wasn't a serious medical condition that we needed immediate attention and but we know your honor from the record that ultimately he did require these two surgeries and has amounted a crude one hundred in ten million one thousand worth of medical bills and so we know that subjectively and objectively officer morale is had deprived them of his right to have medical care in that moment we have have you gotten the medical assistance immediatly that shoulder surgery would have been needed or that indeed even the source of drew was occasioned by the rough lifting but the fact is that i don't think there's any evidence in the record that four even a brief delay can be unconstitutional because his right to medical care arose in that moment and so even if he received medical care eventually that does not absolve an officer of having violated that constitutional rights to medical care it's for those reasons we asked that your honour's affirm the decision of the district court thank you counsel them for you had sixty seconds for rebuttal please