sworn affidavit stating that officers continued to assault him for approximately sixteen minutes after they had subdued him while he was in handcuffs and shackles under this court's decision in scritch thorton because the officers continued to use substantial force well after any possible need for it had dissipated the officers violated the eighth amendment united i'd like to focus on two reasons why reversals necessary here the first is the district court context your honor but again you don't have to persuade us that the disciplinary decision doesn't for cause your client being innocent of any obstruction innocent of any assault you could if you chose to do so for strategic reasons can see that and say still they shouldn't have beat him when he was helpless and handcuffed and on the salute your honor ok under scrutiny thorton under plenty of this court's cases the fact that a prisoner may have caused an incident that results in an application of force does not give the officers license to beat up and that i think particularly here even if you assume mr sears says in his own affidavit he was perhaps a little bit on really that he refused one order to be handcuffed i think mr sears says  i want to give you a chance to talk about o'bryant it with you or launching into there but while you do so can you just respond to the other side's argument that the district court didn't really rely on how brian district court that we believe appropriately cited o'brian in its motion to dismiss opinion they brought it back it if you look at district court's opinion it is clear that it's using o'bryant to foreclose consideration of any of mr warren allegations not to mr sears allegations with the exception of his allegation respecting the use of a second canister of pepper spray or even discussed in the opinion the undisputed facts message of the  barred consideration of all of those facts yes your honor that that appears to be the best reading of the district court's opinion you know and so i'm not sure really i'm interested in the reason we it doesn't matter if o'bryant had never been decided your position is that's still wrong absolutely your honor and i think that's why the parties spent a significant amount of time in their briefs establishing we've made quite clear our position that there were disputes of fact that this case is a scott versus harris case you've got a videotape you've been home and albums no sir we do not have a videotape but we have a couple cases in which the principle from scott versus harris which is that if there is record undisputed i think that there are three i think it's important to put the allegations in context at this point from what i understand the the opponents are not arguing that any constitutional violation occurred before mr sears missing from the spray can i say is correct as a in so you say that it contradicts his affidavit as a matter of law i say that under scott versus harris the quart is not obligated to discount not testimonial evidence that is going to blatantly contradict what's in a sworn affidavit that no reasonable jury would find in favor of crediting that defense know no way  six grams could have done administered in more than one spray as a matter of law the record i believe bears out that six grams is consistent with a second burst which itself is consistent with not that on which you rely i think that that's actually important point judge anderson and one of the things that perhaps needed to be explained a little more the brief or the prison regulations which actually demonstrate that check in and check out of the m k for canisters are very very strictly guarded they're very very strictly controlled and very very i don't know how do we know who ever testified to that is t we have videotape of that that's correct we don't have a machine that when it runs twenty four seven and tells us when one of those phrases used that somebody had to test found that an affidavit or otherwise i believe that's actually it wasn't necessary it wasn't an affidavit your honor i'm actually if they didn't test urine and in an even weaker situation because there's certainly a motive not to i mean you've had beaten up on somebody after he was  a conjectural level of bad faith on behalf of not only the officers who were alleged to have been made this complaint but also everybody from the shift supervisors that weren't able from the folks the sergeant at arms of the i'm wrong about that i think that that's a that is a situation where you have a what we've cloke we've heard the swearing contests where you have one after the other side machines don't testify machines don't download their information  court there has to be a human somewhere in the chain of evidence and that's credibility versus the points credibility that's whatever the human says i understand that our position is that the great weight of the non it and you might own a motion for a new trial persuade a judge of that but that's not what the standard for summary judgment is that's and i understand that the standard for summary judgment is no genuine disputed material  fact issue of material fact corrects there's no genuine issue material fact our position as we've had to argue it is that the judge here took a look at the not only just the inventory log but also the medical records which we haven't discussed yet this morning and found that the mr sears is accounts of the injuries he suffered were inconsistent with what was actually listed in the medical record and they were inconsistent with the idea that this gentleman nurses written testimony you know in the records of all through the only terri that i have with that your honor is the idea that the medical records themselves are testimonial for purposes of summary judgment these warrant witnesses who at the time were giving an affidavit for purposes of litigation these are witness who responded to a gentleman who said therefore there are more credible not more credible i still think that we i mean very very loath to go into the idea that we're actually weighing the credibility of to testify interested party witnesses we're not waiting we're just saying so opposed the one that has this story is telling the truth and the one that has the ones that have this story are not telling the truth and how do we know that's not the situation in our view your honor i we don't believe the district court was obligated to turn a blind eye to what was different more credible less credible so i'm credibility i think that credibility is not the correct way to think about that determination i think that when it we give it more white or less weight the fact that somebody is being asked to testify  as opposed to what they wrote on a piece of paper which wasn't on i think that there has an awful lot that goes to the motivation of why these particular check in check out of the inventory is meant to take account and to address situations like this right here where you have an allegation by one party that a certain amount of force used an allegation by another that that force exceeded what it was the prison guards were discussing medical records were not made and they weren't compiled with the the object of setting out a living position they were actually made in compiled with the object of sure that mr sears got the appropriate treatment and that appropriate treatment was listed as he had pain in the back of a said but his pain what area that he was complaining about pardon me experiencing pain was  that he had experienced on his shin and our position in the middle of the hated and one of his lot of part of his testimony was that he was not so down that he was almost unconscious that is not a small up my read of the record suggests that that i thought of that excise lump was not on his head but was on a ship and that was what i understood regardless of where it is that's not something you want to have that's true and so yes whether it's remarkable or not depends on whose that i understand but our position is that these medical records were kept in the normal course they were kept for the purpose of where to take is beyond dispute that he had to ex from the altercation well that in this this is important to actually contractual eyes the argument that the appellant is making here and that's that there's no dispute that this was an unruly inmate there's no dispute that the initial altercation and everything that happened before he cuffed did not rise to the level of a constitutional violation these injuries and i would submit to the court are consistent with the gentleman who was pepper sprayed with one second person who experienced the burning around his eyes in his mouth the skinning of the shin the the bruising on the elbows and the excised one that's consistent with a gentleman who had attacked a group of prison guards in was restrained was taken to the ground was placed and wha for a minute and a half if first of all you're i don't believe that that's the case here and i think he's been it's what you believe the case here and what i believe the case or does it matter it's what a jury could if the jury could find that he was beaten for sixty seconds continue between or no sir no your honor i believe that on if you have a situation of the circumstances have to do with it if in the hypothetical i gave you i sat down and and cuffed behind his back and they beat him for definition i was wearing conduct that is but it's not a pure swearing contest these are the only facts that are at issue here in our response and it's one that i need to keep on coming back to is that the documented evidence the medical records which are kept in due course the strictly controlled m k for canister logs in and out which are kept in normal course there's been no allegation that they haven't been lately contradicts this gentleman story that he was  see my time is run out if i may answer your question your honor our rule is that on the four corners of this case on the facts of this case we do have a story that is boiling contradicted by records that no person mr sears not you know or from the other side has given a reason to doubt the veracity or of course he's given a reason but there's no reason to actually doubt the these were kept in the normal course and that these folks who kept these records were have not challenge the failure to intervene dismissal on appeal if from what i understand there was one reference to it i believe in a footnote which i believe in this court's precedent was not well if if that is someplace far away the plaintiff also testified that when he was being choked he called karnal roberts which suggests that carol roberts was within the reason why i believe that neither side has addressed the failure to intervene in any great length is because the fair to intervene presupposes that the attack occurred in the way that mr sears has testified that it occurred so if in our view i believe that the two counts must rise and fall if mr sears argues that he was and if the court is inclined to send it back down to go to a jury then there would perhaps be a question i'm not prepared to concede that here but if there was no assaults and if the core were inclined to agree with our sample but if we don't agree and we think there was an assault then where are we on the failure in vain issues that's the question that has not been pushed to any great there's an argument that that particular i don't care what the arguments are counsel i don't care what you could argue i want to know what your position is my position is probably the fairy intervene claim would rise and fall with the  i would i would still say on this court's precedent has not been preserved then it doesn't rise or fall you've got to make up your mind it's too late in the process to say and then not be then not i believe that the claim has been waive and that is my that's our argument should the court find the claim is not waived i would believe this would rise and fall with excessive force claim your honor therefore it couldn't be dismissed on the ground that there was no genuine issue material fact that they were too far away to intervene that would be an additional fact that we need to be found yes i have a question before you sit down you said there were three pieces of evidence that rise to the level of the scott versus harris videotape and one of them is the records documenting the amount of overspray that have been used the second always the medical records what was the third one was actually the somewhat shifting nature of mr to say that there was a blatant contradiction with one gentleman story so i can understand why times more but i'm happy to engage with this if you would if you would prefer but our position was on that front that the folks way we can still try to demonstrate that the one second burst did not occur and as soon as that was done and the cans were weighed and found to be consistent with the testimony of the officer once this different why don't you start with the failure to intervene issue and whether or not you preserve did your breeze yes your honor this is the first time hearing that that has been forfeited and it's i was looking at your appropriately detailed table of contents to see if i would look to anything and i can't see your honor it's not a standalone entry in the table of contents but we did some of the issues right our briefs our opening brief it page seven and then again it page thirty and then in the reply brief at eleven probably but eleven says captain dexter lieutenant hart and colonel roberts all remain in the case and are potentially liable for their failure to intervene but i thought that was attacking the fact that the district court said they're not liable because there is no underlying use of force incident they don't have to you're the one if you want to reverse the judgment yes your honor so the question is did you argue that even if you are on the issue that it wouldn't be the supervisory i'm sorry the failure to intervene issue shouldn't be decided against you on the grounds that the district court decided against you your honor at page thirty of the blue brief and admittedly it's in a footnote but it's an extensive footnote we make that argument you said also on page seven right page seven is where we discussed the events the fact that captain dexter was present for the entirety of the evidence that they were too far away that's right your honor and mr sears offers again a sworn affidavit that says that they were close enough to observe under again under scritch and under the other court's precedent what matters is that the officers be present and fail to take reasonable steps to stop the excessive force and paid seven continuation from six say mr sears verdict count of this event tells a different story and then you go into great robert watch from a short distance period and you cite what he said in his sworn statement yesterday that's not raising the issue in arguing it's wrong i think the arguments of page thirty in the foot that hart and roberts there's no evidence they were close i think it's pretty plain throughout all of mr serious arguments that captain dexter was an integral part of this and that she's liable for her failure to intervene as it matter i mean you get  judgment you've got your damages in a real world we all know where the money will come from if you provide all that's right your honor just briefly with regard to the chemical accountability log i just wan first note confirming judge martin's point there is no evidence certainly no undisputed evidence in the record regarding the correspondence between time of spray and spray weight and moreover your honor looking at chemical accountability log stuck at one forty three dash six at pages five to six i think with respect opposing counsel there are great things there that a good trial lawyer could bring out in front of a jury of the check in wait on one of them is crossed out and scribbled over an initial next two and there's also an inconsistency between them the check in time on one says one thirty pm and the check in time on the other says four appreciate it would take a standard submission next case up is calling maritime versus national union fire insurance