here davis for the plaintiff when i took this case it did not look like a complicated legal issue coming in it looked like a mere conflict of testimony that would have to be resolved in the ordinary fashion but the district court opinion in this case has expanded beyond the love of scott b harris further than the supreme court ever indicated that it wished and for the event this court has ever consistent londe of cases since that time in which this court hasn't deviated from that particular parsing of scot free harris this case is the most blatant one that i know of in six our picture is prudence at the critical event doesn't appear on tape at all everybody admits that the contradictions occurred during the booking are during the investigatory process in front of the skull car of necessity the putting in to the scalp car of the center rusted it wasn't and couldn't have been so recorded of note of course is that the plane of nothing resisted and was always compliant with the process and there's accident by alleging that they didn't even touch him or joe was didn't even touch him putting him into the car to me if there is an incredible piece of testimony in the case that sit every single police officer i've ever seen in every train every saying says when you have the person in your control and they have to get into the police car while handcuffed you assist them guide them make sure that nothing happens during that process and here chief justice has said no no i didn't touch him at all he got him by himself therefore it could been an accident therefore it could have been the slip it couldn't have been a fall the police don't don't support that in any of their reports and therefore you had to have been over to exists use of force well let's take it this way counsel let's assume that job is not telling the truth that he did in the ground why it but i've tried gratuitous or malicious as opposed to simply being horrid of putting him in the car and i couldn't find a place where he says you know he yanked because he was mind of joe's simply isn't relevant to the analysis he's an experienced police officer he's dealing with a person that is intoxicated is the mr toner is a big man he's a skilled tradesmen and a farmer and and he had a big hand on his head from working out that somehow or another he had to get a not car the only way he could do it was being guided and pulled up that's what he said happened suppose it was reckless disregard rather than intentional injury that still satisfies the standard a rotator cuff is not a small injury it doesn't happen willy nilly and therefore the yanking up which mr toner clearly testifies to satisfy is in my view the evidence for a burden that he has in that regard he can't possibly know  prisoner has been handcuffed and subdued under those circumstances yes in my view it can't have happened inadvertently or accidentally there had to have been an intentional act which set turner knows when his arm popped he had worked all day doing heavy labor second the first ladder but somehow not for some reason other mcmanaman being honest and conservative is being held against him and mr turner because of the time that he wrote that letter it was in two thousand and eleven mr turner sark condition did not allow the surgery to repair the rupture until two thousand and twelve reviewed his records and wrote a letter saying i believe it was as a result of the incident well you know one of the things that what your wife is quite used that he was an extreme at the very moment joe allegedly are all kinds of situations at the medical or in the interaction where either people complain loudly from the beginning or they don't they might be scared they might be intimidated they might have a higher tolerance for pain mr well if it's a medical to pollution that every person who gets her must make an audible sound at the time that that hurting occurs then it's a new concept to me the question is no i didn't cry out in pain and no i didn't complain because i know these guys hide live in this little small part of the northern tip of the thumb of michigan my family's been here for generations i didn't have anything to say to these guys i just wanted to get out of jail and go to the hospital and when did he actually go to the hospital he made an appointment with his doctor the day he got out he got an appointment with then within a week for sure maybe a little bit faster than that his ordinary my view of this case is that last night in reviewing the play his deposition that even if you view what it is the plaintiff said the chief did and soon it all to be true i don't see how that even rises to the level of excessive force certainly because part of the judge's decision below was that there was qualified immunity as well i don't see anywhere in the record where it's been established that what the plaintiff said the chief did amounts to a clearly extent established excessive force and let me run through because i jotted down some deposition pages last night when i was reading through it what the player said the chief did was first of all put his cuffs on too tightly and we can clearly hear from the audio that the chief asked him if it's if he could loosen it and he did chief in fact loosen the cuffs that's page one twenty four the plaintiff then says that she banged my head on the door and knocked off my hat but the plaint goes on to testify at page one forty five i'm not holding the chief accountable for banging my head i'm not alleging excessive force because of it and i'm not claiming any damages or injuries because he banged my head and the third thing was the chief lifted up on my cuffs to put me off balance to get me in the car he didn't describe a gratuitous jerk of the cuffs what the planet describes in his deposition is a method by which this admittedly large man could be in his words tilt to him over page one forty of the plain of stuff tilted him over to help him get in the car and even for the sake of discussion assuming that caused an injury not every injury means that there was excessive force just like you can have excessive force without an injury you can have an injury without the force being excessive in all this chief did was lift his cuffs up not not to injure him but to tilt him over so we could get him in the car in my judgment that's not clearly established as being excessive force at all and that's all the plaintiffs said the last thing he says one forty one that he pushed him into the car under the seat and then goes on to say that he never punched me he never kicked me he never struck me in any fashion to me as a matter of law this does not describe something that's clearly established as excessive force counsel your adversary no that she joe says he didn't touch him or states that he didn't touch him at all to get him into the yes what's your what's your view of that contradiction i don't i don't think it's consequential for our argument because i have to assume what the plaintiff says is true when i make my summary judgment argument as i think does the district court blow so even if there is some contradiction between the forty six one forty seven and thereabouts about what do you think caused the shoulder to pop when my weight up and got me off balance off that shoulder that inconsistent with anything else while i don't think that the good he's describing is a fashion worth over by the cheek as i said earlier and you know he would say that's consistent with what you were describing that one or to you one one forty one forty i said to them over and he was not off the ground i would say that that's consistent are obviously the legal issue that is part of this appeal this the scope of scott versus harris as well we've all read the decision we all know what it means and where the plain of subversion of events is blatantly contradicted by the record the court for summary judgment purposes can disregard the player's testimony that with respect to what happened judge ludington focused in on that twenty three seconds of audial which is uninterrupted and cool can clearly be heard on the recording i'm sure you've all listened to and when you look at the plaintiff's complaint and compare that began with this testimony with what you hear on the video it's so obvious that what the plaintiff said happened my question is this there is certainly a contradiction or a potential contradiction between being in extreme pain and not crying out or will they have some explanation for that but he never i cried out ok he says i cried al and the video audio is silent that would be a direct contradiction to greed but here what you've got is some a a grunt is consistent with a or not but would you really say that it's a blatant contradiction is just saying that it leaves it where it was before that he says i'm a tough guy i didn't cry out  because he says he heard a pop and that's something that's certainly not recorded on the audio and might not hear that possible obviously have to concede that but that was just some suggestion while you know but that he was in seat a little more comfortably and the plaintiff responding to those kind of questions with ok or a k to me that is a blatant contradiction even if there was no cry out of pain because if you have just an injury that those of who are familiar with you know when you had it hurts it causes you pain immediately and for him to be responding in a calm and rational fashion to the chiefs pleasant there's no other way to describe them instructions to get into the back of the car and for you to respond with ok it just again it defies any rational trier of fact could conclude that this man it just suffered a traumatic injury a torn rotator cuff when he's talking to you and responding to the questions for the chief in in a fashion that can only be described as amicable to me it's not that close to a question when you consider the larger picture because it isn't it isn't the whole point of scott versus harris what a reasonable jury could find under the circumstances is could any reasonable jury listening to that recording that audio recording conclude this chief used excessive force and i think the answer that question is no because it would cause you to disregard completely what you're hearing in this recording and and i think too in addition to that we all looked at judge lettings to ludington specific he also alludes to more than just the recording to to arrive at his conclusion that no rational trier of fact could find excessive force he looked at the the lack of a complaint of injury at the jail and when the corrections officers are asking him whether or not he has any medical condition made no complaint whatsoever when you look at the doctor's initial letter or explanation about what it is he saw and saying he has no way of knowing what caused the in injury my only interest is o u i all suspect in the back of a car that shocked him think that there was litigation perspective that when you combine as judge ludington did all of those things that were part of the record blow no rational clu video and audio no rational trier of fact could come to a conclusion that that excessive force was used by cheek by chief joel with all of that evidence in there and  with respect to the injury itself but you have to understand that the record below there was no there was no evidence that the plaintiff put forward of causation and of course one of the elements of of  the ninety three claims causation there's no there was no evidence there was no testimony even if you look at the the letter that was delivered after the motion for reconsideration was broader or in conjunction with that motion even i think the word was secondary the the subsequent letter judge the later one yeah that the doctor says that the injury was quote secondary schools quote to the event of the arrest and that was the doctor letter isn't that kind of medical medically hurt if it came from but but he well yes obviously that's what he did judge the doctor meant by secondary but what i'm needing to say is that that there is no there's no evidence of a causal effect by the doctor what he's saying is that assuming the history of the plaintiff the temporal explanation the time conjuncture when he started to complain about this injury i mean it clearly doesn't say you know whether it was malicious or why it happened whether it was negligent or whatever right doesn't it pretty clearly say that at least at that time or here later so he says it came from that event well yes i guess that's what he's saying at this point time when he's talking about the players history but again you know obviously for cross examination purposes he was lifting bales of having to sort of have to accept  argument but even the plaintiff's own description of the force that was used is not clearly established i don't think in the circuit as being excessive force and and just i mean if he had described an event  and i've had cases with them and mr davis before and we've all heard the testimony from the plaintiffs when they describe what it is the officer did to me when he ratcheted up if you're all kinds of verbs utilized to describe what the officer did that cause of the suspect to be injured after he was handcuffed by the jerking of the pulling or the ratcheting or reaching up high for all kinds of birds used by plants here this plate of all he said was you till took me over and put me off balance so i could get in the he did it use were obviously we can go back to yeah i had what i was looking at page one forty judge when i was describing and if you look at one thirty nine he just picked me up off balance and so picked me  states and in my view they stretch the interpretation of that case but that's where causation comes down and to find or to rule lack of causation as a matter of law under circumstances like this with a supporting doctor's opinion and a guy who works in a factory every day and had up until that time for years  knows when he got her and he knows how he got her and the doctor says that's how he got hurt with regard to my client's compl since if you will with joe's it's hard for me to understand the argument about how he's worse off for being more co operative he is a former law enforcement officer he has this and a lot of it is my client acted calmly yes i don't know how to say it any better than that i think that you've gotten past the question of whether or not there has to be a total or a partial showing of inherent dishonesty or incredibility  but it seems to me that here the judge not only decided facts that were shown on the video but you as the facts that were on the video to make that determination and in that regard just simply shifted the burden and we know that that shouldn't be permissible what's the best thing for those court this is one of the few places in the united states where we are under video surveillance and who knows how long about well left but every case that i see these days has video in it someplace sometimes allegations of improper spoil ation sometimes arguments of tampering lots of times arguments of different kinds of interpretation this really is the chap of a sort of very slow it may well be that by opening up the process to the kind of decision that the district court made in this case will make for a less trials it won't make for a less appeals and it won't make for the never ending or a struggle to hold back and therefore it seems to me that the court has drawn a very clear line in the sand if it doesn't completely contradict or as scott said blatantly contradict then seems to me draw the line and not also let me ask you about her statement and earlier that it's an objective test about excessive force  is there no subjective element i mean if you slap a man in the face that would be excessive force but if the reason you slapped him is you didn't know he was right behind you and you just want your arm was involved in a process which required him to manipulate the individual and he acted in such a way that he caused an injury which couldn't be