attempted murder or had a gaijin instead of road rage which a gun it's a tense situation and he has to make quick decisions and take quick action to secure the individual to ensure that the officer in conducting his this fellow officers and that the public are not accidentally shot so it's your view that officer smith had what reasonable suspicion to think that mr howell was was the person that mr clear that the charges were just charging the weapon correct correct the department received a call from an individual saying i just been shot at and great in griffith and i'm following the car and he was adamant that it's at the scene of the stop that this was the individual that had shot at so clearly the officers out believe this was i submit more than reasonable believing that this individual was and the fact that he says he said i just recently had surgery in my arm can't go back like that does that change the calculus in this case change the actions of the officer down covering them from from reasonable to unreadable i guess it boils down to could he have cuffed him in front given that he made that complaint well your honor could he have yes graham and all the other cases be reasonable or not reasonable reasonable this is a range i would suggest that that probably is reasonable but i would also that that unnecessarily puts an officer at risk now he's dealing with an individual who may be armed and instead of being at a tactical disadvantage by the officer by his back being the officer now there's a technocrat advantage that this individual has he's facing the officer at the time the officer frisks him at the time the officer frisks him with his gun holster at least when he standing behind him he has an opportunity to protect himself so there's a difference between handcuffs and thank you from an officer safety point of view right handcuffs in front hand counts behind correct handcuffs in the front don't do much to disable an individual you can still attack the officer using the arms together as a as a bludgeon if you will so so that doesn't really secure the situation or secure the officer or or prevent the threat of injury and what we have to keep in mind in this case that even though the individual claimed that he had this problem with the shoulder keep in mind the totality of the circumstances that about whether he was so here it is ten and eleven in your opening brief where i guess it's you questioning somebody you told the officer that your shoulder was so or yes did you say anything else just the fact that it was so or and then at the end of that colloquy so you never told them that you were in pain at any time is that correct answer a yes that left me unclear what was being said unless we were drawing a distinction between soreness and pain because he certainly does say yes i was sore and then he maybe says no i wasn't in pain i'm not sure it's very hard for me to take and so i could see an affidavit perhaps clarifying the scope of that handcuffed me and then i followed up on what he said to the original officer was this comment about i recently had surgery on my arm can't go back like that well yes i told them that you were in pain you told them that you had surgery in your arms not supposed to be put behind your back correct ye that's correct your honor i mean if they're going to submit an affidavit that contradicts there clear deposition testimony there has to be some explanation as to why the affidavit is being submitted and why i'm not contradicting it now i understand that i guess what i'm pushing a little bit on is how clear that deposition testimony actually was because if an affidavit is allowed to clarify something that's already there it's just not allowed to contradict or you know introduce something from left field that should have been explored in the deposition that that i can see here and i think all i can say is look at the lengthy colloquy that i quoted in our brief of all the questioning i think it two or three pages all i can say is in my mind from this side of the bench it's clear undisputed do you think the facts are that he didn't in some way manifest further discomfort maybe i'll try to use a different word after he's sitting in the squad car for the twenty twenty five minutes you know he never actually articulate a complaint that seems to be undisputed correct your honor and it's his burden to establish that we acted unconstitutionally it's his burden to say i gave some indication of it there is nothing in the record to indicate that at any point in time during the course of handcuffing he said anything he winced or he did anything in the process of the arms coming back to indicate that it was painful i would also point out to your honor that you know kept his wallet in his right hand back pocket at the time so there was nothing to indicate that in the process of handcuffing anything  corroborate his comments occur and now he's rhonda give me some sense of the timeline of the encounter here was it a single officer who first step or him did so explain it was a single officer and according to the record he waited for think i would prefer that to be the record your honor but knowing according to his his testimony he waited for backup i believe to get the individual out of the car so there were he stopped him in ways correct stop them and waited for a few minutes and the other officer came in there were two of us that's critical and that's all that's correct around and i also point out that when smith stopped them he testified he conducted a felony stop and that that felony stop is you open the door and you stand behind a door with your gun drawn in your stand in position of safety to the back of the individual that's who seated in the car in front of the planet so and the other officer was worth it and the record is not clear all he said all the record says is he arrived at the scene and third off there were a third a fourth officer the second officer was was banned a sack from highland from the town a highly they called griffith and as referred to come to the scene a group of officer came to the scene and conducted the investigation the total time there took approximately twenty five minutes the record doesn't say when griffith arrived my assumption is maybe perhaps ten or fifteen minutes into the griffin is the other officer the suspect addressed the town of griffith i'm sorry i'm sure that he addressed snyder that's correct he's the to the griffith officer took him out of the squad to question him from the to this the town of griffith officer took him out of the squad to question him and put him back in and his testimony is to that officer i said my shoulder  and and i would point out your honor and in the stained opinion that you offered him and in the raben opinion your honor that you offered that the parties rely upon there is no bright line rule and that's what plaintiff's counsel would advocate all we have to do is consider it and at page ten in his deposition smith said he told me that there was some problem with his arm to take it easy on it or something to that effect and he said and i did it and what does the record explicitly show that these officers knew about the about the alleged crime when they apprehended this man when they pulled him up radio dispatch from the dispatcher the dispatcher to convey a relayed the complaint from the victim who said i'm following a guy who just shot at me and griffith make your owners please court i represent tom how the plaintiff in the underlying litigation obviously we think there's a question of fact as to whether the force used by officer smith was excessive that's why we're here counsel's right it's our burden but that burdens a get where we're free clarify we're free to clarify no ambiguity and in the testimony there's there's no direct contradiction to it says you know did you did you tell officers yes i told officers and he says he did so or ever i think it's clear that he at least tells  officers that his arm is sore that sore might or might not be the same thing as being painful right and again we've got it we've got a question of fact here that is probably best suited for a jury but you know is he sure does that mean that he's in pain does that mean that it's excruciating pain but you know generally when you know need some identification that he's in discomfort or he's an actual pain in there and it's other just sore that's all that got absolutely where you where this is the page eleven i am sure some place no record but so you never told him that you were in pain at any time is that correct answer yes so so that's i think the problem with the affidavit is if he says in the affidavit i did tell him i was in pain and he says in the deposition i never told him i was in pain right that's a problem i think it in his view that the testimony is he wanted to be clear with the words that he used and so he used the word sor that's the word those are those are the words he used and so then the question becomes well what does that mean well it probably means different things to different people and i don't think we want to be in a position where we say you have to use the right word to describe the situation of the pain that you're in because it's an adrenaline charge situation i think any of us the pain would be significantly worse after the adrenaline died down  was it was a different case that the counsel brought up i'm sorry but the raving case is differentiated here and i think this is why the district court relied on it because in the reagan case they specifically said the other officers got qualified immunity officer knepper didn't get qualified immunity because he knew about the condition plaintiff was cooperative no reasonable officer would believe that keeping the handcuffs was necessary to ensure safety the other officers did not get qualified immunity because they didn't hear about the preexisting says i tried to take that into account but not to the extent of feeling that handcuffing him behind his back was the appropriate measure there's another one of these metaphysical distinction between yanking and pulling  recall but i guess pull isn't quite as abrupt or potentially painful as a yank so so i guess he knows that there's some possibility of it but if if the witness has told that to happen but it does happen sometimes so your honor it's important to remember here that the officers testimony officer smith testimony is that at no point did he feel threatened by mr hall and so what we're we're not asking for country to  the characterization of what we're asking for we're not asking for a bright line rule that says well person asked to be end up in front the f b i come front that's not we're asking we're asking them that when an officer does not feel threatened as is the testimony here that he avoids doing something that he knows is going to hurt the individual he's dealing and separating means no i mean maybe he's saying i don't feel threatened because i've got the situation under control you know and well and he said you know what why did he feel threatened your honor and and it to be perfectly clear maybe that's his maybe that's what he used to tell a jury is to is to clarify that a little bit further with of the circumstances those things that we have to look at which are laid out in the stand back case those things that we have to look at the severity of the crime is definitely on the list and so you're right there's those points to be had there but even in the this court created you know basically a potential situation where it said it may become clear to an arresting officer that although an action would not ordinarily harm the arrestee the action would nevertheless cause pain or injury to that particular individual knew about the heart of the officer knew about the harm and proceeded to act anyways and that's where he got hurt so what we're doing mr hollis based saying i'm the guy who meets that situation also makes clear that you could have a situation where the officer knows there's some who some possibility man is going to get hurt but the agencies in the situation still require that you see if you're right absolutely and that's why again we're with that severity of the crime is there an immediate threat was he resisting or a vague so it's very of a crime it's a bad one for me immediate threat absolutely not officers testimony no no threat at all and he's cooperative and just cooperate if he did in fact officer smith says he was compliant cooperative the entire time no resistance no abating no anything and so if the officer says he doesn't feel threatened then i think we're in a position where we've got officer doesn't feel threatened what a sore mean you stack up all these things and a lot of questions of fact so so how much deference then do you think the officer has to be given  policy idea in the world right is to start flowing down lower and down these these bright line rules where you have to do with this what this arrestee says so in terms of deference don't you think the language of the words that are said by my  all his his words definitely matter both but we also i mean the words of of officer smith matter considerably to what he says it doesn't feel threatened but we also don't want to be any of us that's not something that helps you write well he says he doesn't feel threatened and that does help me the let's let him explain that to the jury you know i mean these these are all we have in front of us right now and i don't think we want to but see it matters that he didn't say that he felt anxiety or he felt threatened and  not sure that's the laws i means that the reason we have qualified immunity doctrine is because we don't want police officers constantly spending their time in trials before juries justifying long after the fact what they did and so there's there's a boundary of uncertainty that they get to operate within it where we simply say you know they're doing the best they can under the circumstances so we're not even going to bring them before you know a further legal proceeding for faith done something outside that boundary definitely you know there needs to be adherents to the law to bid but there are real question is i think whether officer smith stayed inside the boundaries that were appropriate that i'm out of here you can answer and i can i think you're right that that is the real question is does this fit with the fourth amendment reasonable doubt standard and i think we have enough fuel to hear that it's going to require a jury and it's just not an officer's actions under griffin is an objective standard what smith may have felt is an important because it's not subjective it's an objective standard moreover judge reporter you asked about the context in which this statement was made the question was asked did he do anything to make you feel threatened where we have to see what he's got a gun drawn on of the officer doesn't feel threatened but the potential of him having a gun is enough for there to be a risk of injury you also point out that a qualified immunity analysis has he pays he had his it so plainly excessive what smith did so as to he not to be entitled to qualified immunity the fact that we're having this debate your honor i suggest that it was not plainly excessive his conduct was not plai title qualified it all right thank you very much thanks to both counsel take the case