the sixth circuit provides a cause of action to those deprived of a constitutional right by law enforcement officers acting under the color of state law stephen and jonathan simcox appellants have claims of excessive force failure to intervene equal protection violations and intentional infliction of emotional distress these claims come from early morning events on october eighth two thousand and eleven cleveland police officers  warrants we raided their home while steven jonathan and jonathan's brother jesse were asleep they used on reasonable and excessive force humiliated them and prevented jonathan and steven from wearing pants to jail the actions of the cleveland police officers to deny jonathan and steven pants were based specifically on the animists defendants have against steven and jonathan sexual orientation steven and jonathan are both homosexual males who were in a relationship at the time maddening people put their pants on before taking to the police station is that what's yours is a reasonable seizure types theory is it excessive force i know you just said something that has an equal protection kind of city of claiborne thing going but how about is it an unreasonable search as well or seizure i guess it's really a seizure we have not claimed that it's an unreasonably seizure we have claimed that it is an equal protection violation the entire episode on april eighth was contaminated with slurs about their homosexuality all three are actually in fact homosexuals they implied that perhaps there was some other stuff going on and when jesse specifically asked the cops if they could if he could go and retrieve them pants jonathan and steven were in the front yard where he had a curiosity in terms of your research in the case one way of thinking about this case is that has nothing to do with their sexual orientation it's it's not the norm that when you know police sees somebody taking the station you do in their underwear particularly when the explanation of if they put pants on they might hide contraband or something dangerous or we were in a rush those explanations don't work because they sent the brother up twice to get shoes right so that doesn't seem to make sense and then you can also pass somebody down if you put them put their pants on some just curious if you look at cases and realize we can't see any reasonable seizure because you actually are allowed to take people to police station and underwear happens all the time you found you are allowed to take people and i did research there were several cases that the court had held in the favor of for reasons that you stated being able to put contraband in clothing but did you hear what i also said i don't understand that point i mean just people down the norm the norm people arrive at the police station with a pants on that is the norm yes this happened to be an early morning sweep so they were not dressed but to me it's they say that the rationale behind not writing them pants was that they were in a hurry which you've already actually proven one of my points for me they sent the brother up twice jonathan and stephen were handcuffed together so it would not have been that difficult for them to put their own pants on and that was also one of the reasons given by the police was that they did not want to unhappy handcuff them for safety reasons to be able to put their pants on that was not the case here they were handcuffed together they probably would have been able to at least put some type of cover up over their boxer briefs it was not only the denial of the pants it was the reason for the denial of the pants which was completely based animist towards their homosexuality and when the reason given by cleveland police for not to jesse and in front of stephen  jonathan for not being able to wear pants was that faggots don't get to wear pants to jail another reason to show that they're not they were not in a rush is everyone else during this morning you're talking about a lot of facts and as you're well aware the district court struck the up to date it's yes and so the facts that you are citing to us we're should we look for those well there's no this record there's deposition testimony a and so all of this is you would see where i'm going you have you see the grief on the other side it suggests your shortcomings are not about the are not so much being addressed here so ok a court must first determine whether the affidavit contradicts the nonmoving parties prior sworn testimony here that is just not the case the there are slight inconsistency it is difficult it was it was chaotic when jonathan and steven were in fact arrested they were not permitted to see any of the police officers up until the rationales for why you were short on facts and  certainly it's understandable but the there also was a point where there where they heard the depositions of the officers and then came to know apparently who was who who who offered the slurs who you  suppose but there was no amendment i mean the district court cites that yes the time frame of this case was unfortunate for us and you know in hindsight we should have done things differently and we are conceding that discovery ended very shortly after the officer depositions we had already bypassed the cutoff to amend the  step was to move forward and meet with our clients and have them be able to pinpoint from witnesses now seeing the officers at their depositions from then being able to pinpoint with which is how we drafted the affidavits i don't think that the affidavits contradict their prior sworn testimony there are inconsistencies as far as who had glasses on who did it we've never really been able to discover we didn't know if certain guys had on glasses or had to further conceal their identity some just not totally following i thought everyone understood at this point in the case that the difficulties of figuring out who did what and when that was all figured out at the time of deposition that's exactly why you supplemented things the problem was you did it late but so i don't understand the idea that today you don't know who did what i thought our problem was you learned you couldn't learn until the depositions that's fair enough that makes sense but then as the district court judge found you didn't supplement on a timely basis right i mean we did the best we could with what they were able to witness and it wasn't until the depositions and it was not to our benefit to wait and to decide to move forward and do the affidavit is looking back we should have amended amended yes so but let's say the district court acted within her discretion and saying listen you know  there's a procedure for this it's ok that you waited to a depositions in one sense that's understandable but you waited too long and it was in within her discretion to strike all that is very damaging to the excessive force claim with respect to the equal protection claim to the two go together or i thought there was not a problem with identifying for example johnson with legal protection claim well there are three things about the affidavits one is they contain the word belief they think is belief in which they think is personal knowledge and when that happens in the six circuit the court is supposed to use a scalpel and not a butcher knife with the affidavits that being said i think that there was a butcher knife used here and cutting off the tire affidavits being allowed resulted in summary judgment granted that to the defendants on everything and that's the thing i'm trying to make sure i'm understanding except for the sake of argument that the affidavits were all properly struck yes i thought that destroyed the excessive force claim because you were never able to identify a single officer with respect to a single act i didn't think that was true for the equal protection claim because i thought there was without the affidavit still evidence about what officer johnson did not following this right or just tell me or is that your view of it hey if you strike all the affidavits we really can't there really is no evidence supporting mclain just tell me the answer  for summary judgment in this case i think we have to take them in order first dealing with the motion to strike to determine the what evidence if any constitutes the summary judgment record in this case and obviously that motion to strike dealt with the affidavits of the plaintiffs pelham's in this case jonathan simcox and stephen on doe we believe the district court properly struck the entirety as we asked the entirety of both of those affidavits and as much as they were promised using the language that they chose to use to rise to the level of knowledge sufficient to form suitable evidence for rule fifty six perch purposes they never saw me of a court to change that in any way even after we pointed out the deficiencies in those affidavits as they might have done for instance in a rule fifty six he would have afforded them an opportunity if they thought that wait a minute this is all personal knowledge none of this is believed they never sought to do that and the way the affidavits are structured it's clear that the  the qualifiers if you will personality and believe tach to each of the statements contained in their affidavits when you look at those affidavits certainly in the context of the entire record in this case looking at the complaint and the verified iraq atory answers that simply incorporated the allegations of the complaint and sort of the exhaustive detail of the complaint nieve in the remarks that we hear today that they were never able to identify specific individuals with specific conduct so counsel just the way i think i grasp everything you're saying with respect to all the claims except the equal protection claim so i thought even with the assumption that the affidavits were properly struck whether because they were information belief or because they didn't supplement on time after depositions i still thought there was other evidence in the record showing that they were alleging that officer johnson had these slurs and offices officer johnson also did not allow them to put on pants so i thought that evidence was still in the record even if you say the other stuff was properly taken out and i wrong about that yes  particularly when you look at what they they try and say in their affidavit says that their interactions were with two officers douglas park and ariel rojas officer john these don't answer the question with respect to the affidavits ok i mean i unless you want me to disagree with you no no no ok affidavits out this is my question to you is there anything left in the record that supports the equal protection claim in two respects that there were slurs during the arrest and that they were allowed to put their pants on and i thought  it through the johnson deposition i thought that evidence was there well certainly each of the appellant's testified during their deposition that there were searches during the arrest the officers denied those jurors but i think may back dispute about slurs we just established a fact is read about slayers there was there also evidence that they were not allowed to put their pants on well clearly they were taken to jail it wearing a t shirt and boxer shorts and the evidence about there was time to put pants on because the brother was sent up twice to get shoes that are on the record certainly  a why why is there not a fact to spew kind of city a city of claiborne theory here that the only reason to treat these two people differently was an animist point i think of her stand why that record's not here on that claim i think another reason your honor one is it i don't think it's enough to say that we heard these homophobic slurs when we were being arrested and therefore we were treated differently than other folks there's no evidence in the record that other people under certain circumstances weren't treated exactly the same way and i think in order to make out the evidence that says it's summary judgment where's the evidence says that the norm is to take people to police station and then where the evidence on summary judgment was that the t they made the decision that they be taken to jail dressed as they were that was their decision and that's unreviewed it the explanations as i understand it you're just telling me who decided the question is why the explanations as i  were that there was this they had to do it quickly if that of course does not work if you send a brother up twice to the room the brother in fact can i get their pants no so clearly the timing that doesn't make any sense in a setting where they delayed for two good times going up the stairs you know to the room to get shoes so there's clearly time for that what i thought was the only other explanation the risk to the officers of allowing them to you know officers getting h to allow them to put pants on and to me that doesn't make that doesn't seem as a matter of law necessarily right given that the norm is to arrest people their pants on in the norm is to deal with the risk to officers by patting them down responsible to get your question i think the court's making assumption that there is some drawn out period of time well one officer allowed the brother jesse simcox to run up and get shoes or the other two he was i thought he was getting shoes for the other two people he did and they were  and he asked can i get them pants and they said no why can he not well i only signing a problem getting pants timing doesn't make sense well because they're well the one brother is getting shoes and talking to one officer about getting shoes the officers that were in charge gomery and gardner are trying to ascertain whether or not they had the right suspects for their warrants and they went as soon as they determined that they had the proper suspects they were that the property be cleared and then the suspects are taken out so i think the courts assuming that the result was drawn out period of time here that just simply i don't think is accurate i don't think it's really what by the record i mean if this case would come out differently if there was one more fact there were four people not three and the fourth person was known to be heterosexual and the fourth person was allowed to put their pants on everything else about the case is the exact same well this is what this particular claim come out differently if that were a fact in the case i think that would suggest really a lot more than simply one person was about to put on pay it would be a tribal issue of fact it would it would certainly introduce new facts into the case and i think it would suggest terribly dirty obvious from stamps i think it's pretty obvious that to be a tribal issue a fact well it might very well be i think part of the problem here though is not only it again obviously there was a dispute a fact but who are we going to tribute there to i don't think you can just name i think upwards of almost a dozen people were named in this case i guess  was supposed to have done what johnson even without the affidavit there's evidence that was johnson who had did the slurs and johnson who was one of the arresting officers johnson was certainly one of the arresting officer why can that claim not go forward i don't understand why that claim can't go forward where is the where is the rest of the equal protection claim where is the evidence that other individuals who are do not have the same sexual orientation were treated differently under similar circumstances there's no evidence to that in fact the officers testified that they've had people jump out of windows completely unclothed and that's how they went to jail once they were caught now pretend that that's how they went to work or circumstances were that dictate that that might be exactly how you're transported and there is a process when they get there as happened here i would have thought the way this works is they allege differential treatment you respond in two ways we didn't have the time to get pants number one and number two we normally take people without pants because of arista contraband and both of those do not make sense to me as a matter of law and summary judgment so that they don't act to speed and i guess what i want to be clear about is that the individuals that made that decision unrefuted the individuals that made the decision we turn to gardner and sergeant gomery me are not parties to this case and now we want to tribute their decision making their conduct to other folks just sort of at random what we're going to pick johnson and johnson you're responsible for this decision even though it's clear that johnson was not the commanding officer on scene it wasn't within his discretion to make that decision his commanding officer said take them as they are so where will i find in the record that johnson had no authority here  read the depositions of tenet gartner it's throughout the deposition start to get a marine it's also throughout the deposition of the individual officers as sort of a you know a paramilitary organization operates from the top down and the commanding officer on dispute about that no dispute that they are not in this case and we can't have vicarious liability where we're going to now make johnson responsible for that command decision i assume it's not their testimony that they commanded him to make th when they deny that they made the swords but this word even if they had been made are not a basis for a constitutional violation and there's no dispute about that maybe slurs by themselves but it's slower connected to differential treatment but officers a lot is that the norm to take people to the police station in their underwear well you know clearly most folks arrive in more dressed but they arrive in all manner of dress and there's a procedure when we get to jail if somebody needs additional clothing remember the allegation in this case was a disguise for house for two days without clothes and that's not true and they know admitted it's not true they admit with the minutes of arriving at the jail they were given clothing but they told the whole world they were held for two days without clothes and so there's a process there's a process that happens that happens frequently enough that we have procedures in place when somebody writes not properly quote but if they're missing assured or they're missing pants or domestic calls all together we have something to give them and that's what happened here so does it happen most the time no does it happen some of the time it happens enough that we have a procedure to address that situation the norm when you have an early hours  rest and people are either in their bed clothes or underwear at the door you take them as they are certainly it can be i don't know that a lot of people go to the door to answer the door dressed in that particular state that's what happened here it's not something i would do but i suppose i don't think most people would that is what happened here and they made it for the reasons given whether we agree with those reasons or not the commanding officers made the decision to transport them as they were so we asked for a firm and tonight obviously again i think we have to look at these things first looking at the motion the strike and whether or not there is an abuse of discretion and i don't think we've appellants have pointed out anything that would constitute an abuse of discretion by the court to strike those affidavits and those affidavits haven't been stricken or simply no evidence to refute the motion for summary judgment and i think the court gets begin there were a number of people named in the suit the briefing really only discusses douglas park area rojas and william johnson they don't really discuss any of the other defendants pelleas in this manner there's no other questions they have nothing for  address some of the things that my colleague addressed as far as the equal protection claim is concerned he mentioned that gardener and gal marina had not been named in the suit i don't want to sound like a broken record but we had never even heard of these two officers until depositions of the officers we made the decision then to depose those two where they did testify that they made that decision i think that there is absolutely in the complaint i have that yes we can have and again i wish we had done so but we did not you know one thing that's troubling about your side of the case you know you lie and some things you can be unfair that you lie and all things and this is an outrageous case from the perspective of the lies they were caught with in their complaint and the only things there is they've said so far that are still helpful that have been contradicted of things that are video camera and i got to say if i were representing these people have remind them if you happen to be able to proceed in the next stage if i were a trial judge i would really lay down the law you can't have this they had to know they were lying about this whole story i mean it's just it's just really appalling that they would have done what they did hurting the reputations of all these people i mean what's the explanation for it lying about not being able to wear pants because they were gay lying that they stayed at the station they were sent home and underwear that they were in underwear the whole time they knew whether they were in underwear at the station they knew whether they were sent home in underwear that was completely contradicted and once it was shown there was no way out of the lie they had to admit the lie and it's really quite outrageous particularly when it's going after the reputations of people what's the explanation i don't have an explanation i i don't know that they were given pay i know that the first time that they went to jail which resulted in this is when they said that they had to walk home in their underwear  e i don't think that they the second time that they went to jail i don't think it was a matter of minutes before they were given pants i don't know what evidence there is to support that it was within minutes that they received pants i just want to go back to the reason that they were not given pants is in fact truthful and it was based upon them being homosexuals they were the first that day on the warrants week when they picked up other prisoners other prisoners came into the van and asked them why don't you guys have on pants one guy was even going back to the we were in a hurry thing one guy was even allowed to wait for his girlfriend to come unlock the house up before they put him in the van so to say that it was for safety or time reasons just doesn't seem truthful to me coming from that so i think that we have genuine issues of material fact here that need to be decided by a jury and shouldn't just be halted at the summary judgment  there's nothing else i'm finished thank you counsel thank you this will be submitted