fury i'm sorry may it please the court my name is torn fury and i represent the defendant appellants deputy barber there is sampson county sheriff's office and also on how casually the bondholder at this excuse me at this time i would like to confirm my reservation of five minutes of rebuttal time this case arises out of initially a traffic stop of william goodman where he had stopped a deputy barber had stopped mr goodman as a result of having no insurance on the vehicle that he was driving as he had stopped mr goodman from a series of friends and family members of mr goodman including the plaintiff came and as the district court found surrounded and outnumbered deputy barbour while he was trying to  deal with mr goodman that during the exchange the home with the family and friends there was an exchange between mr beck with the stepfather and the pla miss goodman that while on deputy barbour was trying to get control of the situation mr back with at that point began to intervene with his attempt to arrest miss goodman at point tried to pull her away during that period of time deputy barber had some difficulty or getting miss goodman under control that at some point as he was getting her under control she to the ground and ultimately did handcuff or at some point after that of important note with regard to the district court's findings and holdings was the fact that there was probable cause to arrest miss goodman for the resist the way and obstruction that the illegal arrest claim a summary judgment was granted a false imprisonment claim it was granted and that there was and that there was no malicious prosecution claim for the r t o so that under those particular holdings and findings deputy barber had the right to  it is the appellant's issue under the watermen case is to the excessive force issue as to any force that was applied prior to getting under control versus the allegations which i understand accept their fact yes there is that he abused her use excessive force after the handcuffs but auger well and i think the important thing and what we're specifically asking for the court at this point is summary this i don't think there's any question in fact in the plaintiff's own brief she admits that the grab a man of the complaint is not anything prior to her getting him off and let me explain why that is important in this particular case and why the well i think in this particular instance you we asked for summary judgment in toto and i think at this point the court is fully qualified to grant summary judgment with regard to any force that was applied prior to the handcuffing in this particular case that would really help you that i mean what you really need as a summary is just qualified immunity for everything it's what you want you're going to have to go to trial on what happened if you lose here  was doing at least until he had after was reasonable but you but the law is pretty clear i think unless you are going to close not clear what you can do post restraint the law is pretty clear i thought that you can't an officer can beat up somebody after they've reached right well and i think the important thing here is an end it with regard to the facts and with regard of the specific injuries in this particular case the plaintiff in two separate instances in the record specifically stated that her finger was broken prior to being secure that is on the record at page one thirty five which is in her affidavit and on the record in her deposition at page one seventy two that under both circumstances her finger was broken before it correct so that probably being that she got it i will recover from that the correct and it's right and what happened afterward is what she'd limited avenues of appeal from these qualified immunity really well and i think the point is at this point the district court didn't do that and specifically at a minimum we're asking any think i don't have any reason to but there isn't any reason why this quirk can't say that any injuries are under the facts the facts are clear the broken finger occurred prior to the bird being secure did you raise before judge fox i mean it's not in the opening brief and i just did you argue that before judge bob if the answer to that is no i don't see how he can argue here well at this point to give the district judges an argument well that i understand and i think that that's something that we have raised in work in more than one instance in this particular case i also think that in this case  happy right now well i think in that is that it does you can certainly argue i think it helps you in the instance of this particular success the majority of the plaintiffs medical expenses in this particular case are you admitting acknowledge you're not entitled to qualified immunity or what happened after the handcuffs were placed on the line well i think given the existing case law that exists out there i think it's reasonably hard to argue taking the plaintiff's facts is true that after the handcuffs but with that in that event then do we have any jurisdiction here or is it just a matter of firm will now i think again it's what i had discussed before that the in this instance i think that there is no ruling in the district court will you then you're saying you're taking a partial appeal you're taking that you want to piecemeal immunity claim for what happened post ain't got home and i don't think that given the case law that even though you didn't bifurcated for judge bob earlier for us well and i think if you read the plan of zone brief she's already admitted at this point t else well it would be our position to this court that in this particular instance if the broken finger in any of the conduct that occurred prior to that time is taken out of this case there isn't a lot got to resent at first to judge  surrounded by multiple people and who were hostile and all that stuff of the you know we're not position that we can't deal with that that's the question for the jury  and i understand was regard to the conduct after and again i think the conduct before in this particular instance again there isn't much left of this case if you remove the not and your honor i'd i'm reasonably certain the discovery would have been closed before the summary judgment would have been allowed to proceed so at this point i believe that it would be ready to proceed obviously want to if it were remanded it whatever scheduling that the district court had obviously my experience has been that at times that's can be several months out but i think at this point the discovery that's going to occur in this case is likely been fairly complete obviously there may be some discussion with witnesses eccentric but not formal discovery under the honor of the district court obviously with regard of the state law claims i think that the same analysis applies with regard to public officers immunity i think the important thing there is i think the standards a little bit higher but i think the same day we would ask the court with regard the same dichotomy which is anything before the handcuffs summary judgment should be granted and the judge fox should have done that in this particular instance and that he was asked to do that well in this instance i think the fact that he's asked to give summary judgment on the entire part doesn't prevent him from making a ruling saying that under under the watermen analysis that you know we have a staring and south guy's call the lefty grove corollary that if you don't throw it we can hit it all right which means he didn't throw the how could judge box hit it will that again i think in this is the watermen case exists out there to allow that dichotomy i see joe as i as i sat there and listened to mr furries argument one of the things that i noticed was that a lot of this this this discussion back and forth between the judges and mr furr was regarding the facts of this ok and as i read the the court requested that we file supplemental briefs in this case with regard to jurisdiction as i read their supplemental bring they talked about the facts judge king you've made a very very important point you said that you know do we really have jurisdiction over this case whether it's a purely legal issue or whether it's a mostly a factual issue i think just by the discussion occurred here today just by the briefs just by the supplement to breeze that if it proves the point that it's really a factual dispute that that occurred in this case and that this court should dismiss this action and find that you did not led having done that sing like we have jurisdiction there would be a lot of having one side of them that that's right judge i think that if as he set stood here today he indicated that he didn't have a dispute after just king asked him several times not think you had to clarify but during the course of the briefs prior to today they wanted us to accept their priest their backs and not let me ask you this now what you play it or not what ground mauled her hand her head and her face into the ground that we have photographs which up right here today to show the damage that she sustained as a result of him marking her head to the ground there all around her her significant damages were that she had some damages on her back where he hit or some bruises on the back but the bigger finger was broken fired her being on the ground right that when he threw her on the ground is when it occurred now i think the facts prior to him handcuffing her are relevant in front of the jury josh i think that those facts i notice that the judge can you said something about you know there he was surrounded some by some individuals so members of my clients family members he wasn't our factor that he was not surrounded by their dispute about that absolutely ok their dispute about whether he was surrounded by those and that we've been typically they have cameras on their cars and we haven't gotten a camera of what the incident occurred that their lights were activated which means that the camera on a police car was run that would show that the car was not surrounded by her family members but we don't have that no one has been able to yours you say there's more discovery to be done and well i think this thing goes back and we go to trial next week i'm ready to go tomorrow well so they don't need more discovery i don't so you've got you're there you are not complained about this camp i'm not complaining about it judge i think we have enough witnesses who will come in testify some objective witnesses that testified that will testify that that family did not surround the officer who was on our stand who's in counsel's argument he says ok even if i lose today on qualified immunity for whatever happened after that your client was arrested i get to bifurcate this so that there's a qualified immunity segment after arrest in the segment before the arrest so i want to ask you same things we ask posing counsel is that issue for us today was it raised in the district court judge would which one you say is proper way to go judge that think that you should dismiss the action and i think you should dismiss it because there was a case before this court in two thousand and ten two thousand and eleven where there was somewhat of a very similar factual qualified immunity when the facts are disputed but that's the that's the key to the durst actual hook and yet he said one point here that he doesn't contest the fact said that that case loss is relatively clear that what you handcuff so you can't then continue to beat him beat him up once they're compliant you can't continue to beat him up by grandmother used to say you know you can't kick a man who's down you let that man up and i think this is the clearest example of a situation where you're kicking a man down you know we have and in hockey and football you're paralyzed if you fact that she was compliant but i think that this this officer from the very beginning i thought was very lucky he has the right to act reasonable i don't think he acted reasonably the very beginning and be very honest and one of the things you'll notice and discovery he was he was cursing at the people out there what officer is going to go up there and you have a bunch of people there and he's cursing that i don't see that as being  understand his his concern about the number of individuals that were out there but i think his actions from the very very beginning were very honorable and one of our the witnesses that they're going to testify force if if and that he had the reputation that many of the attorneys would say is he's likely to hurt someone and in this situation he did he did that and something else judges on this lady that i represent she's a hundred and ten hundred ten maybe one hundred office about that particular issue but i can't represent go much about procreation stop career yeah the questions that you asked me before to sit down and review it at this point i would just take the position that in this instance judge fox made his order i think this court can do with that order oh i'm including the request to him basically that economy is as indicated in the watermen case especially given the admission by the plaintiff and her own briefs in two different situations both in and on pages eleven of the principal brief and on page six and seven of the supplemental brief where she admits that the grab them and of her complaint injuries and actually with the supplemental brief it starts at bottom of page six and goes to the top of page seven ultimately in this particular instance obviously i think he raised the issue with regard to the damages obviously i don't think the fact that she had bruises on her face necessarily indicates when that occurred again we're just specifically asking in this instance for summary judgment as to any conduct prior to the handcuffing from this court and reversing it as to that extent in this particular instance obviously there were some things that i think were discussed outside of the record during argument i don't think those that can be considered by this court spores alleged facts that may be produced at that trial because in this particular instance there are not before this particular court and not in the record unless there are any additional questions again we would ask for a reversal and cases that are out there and given the allegations that we have to take is true obviously we're going to dispute those a trial but ultimately i think in that instance it is an officer's court i think that's what i need i'm asking for basically