that unnecessary handcuffing and or violent and aggressive and abusive handcuffing can amount to excessive force in violation of the fourth amendment enhanced versus black this court held that the application of handcuffs in an abusive manner resulting in physical injury amounted to excessive force just since we don't have a lot of time that  other than the ensure aid to your client's rotator cuff what if any other evidence suggests that the officer used excessive force the manner in which they handcuffed her by simply forcing her arms behind her back and upwards towards her head that was well but what evidence is there that that was either bad police practice or excessive and rejecting we supposed to take judicial notice of that we certainly know she was injured but do we know is there any other evidence that excessive force was used well the question actually is whether she needed to be handcuffed at all in this well when if that was but that what's get back to that let's assume that they came in in the same situation well we client we need to we need to handcuff you until we secure the place with that violate the fourth amendment well it would necessarily violate the fourth a meadow it's really the metaphors that was used that you're complaining about it's not the handcuffing itself well but the amount of force well both actual wealth and what it was because in the handcuffing situation there would need to be some exceptional circumstances that would require her really hand you're actually creating a search warrant in a place where you think there's a dangerous liquid you come to the door and the first person is there but you're really looking for the second person and you're really looking for the liquid can't you without excessive force restrain the first person you come upon until you get to the second one and that's really what they did here they released her as soon as they found her son that wouldn't violate the fourth amendment what if there is a categorical right to detain someone but you must look at the facts and circumstances of this case this case is somewhat unique in the sense that prior to the day of the execution of the search warrant the officers actually came to the home they actually spoke to mrs in jail and they observed her to be a small person they observed her to be an older woman when they entered when they open the door they asked her to back up she did they asked her to raise her hand she did she was obviously an arm she had nothing in her hands she was wearing pajama bottoms and a t shirt and we we've all we've read the record and your and your your good brief but i'm still trying to figure out i'm trying to separate the two so i just don't think you need to answer my first question what if they had not used excessive force when if they had just put handcuffs on her you have to do you have a nine hundred eighty three case or not i believe based on the totality of the facts and circuses stances in this case yes there would have been a violation but even assuming argue endo that you are right that that is not a fourth amendment violation certainly the manner in which this woman was handcuffed was abusive it was violent and under nice circuit precedent that would be an excessive force case under the fourth amendment robin hanson i think we have a case in which the handcuffing is probably not justified at all do you agree yes and that's why i'm trying to figure out once you get to a circumstance where the police are entitled to put some restraint on someone now we're talking about the manner in which they did it and we get into these immunity questions and that's why hansen strikes me as a different case which is no reason at all to handcuff anyone somebody was in a driveway as i recall right but hanssen the decision decision didn't hinge on the mere fact that she was handcuffed it hinged on the manner in which she was handcuffed and that's the same situation so let's go back to judge callahan's question you've got the injuries and you've got your clients testimony that the police officer lifted up her arms behind her is that the evidence from which we're supposed to find excessive force well if this is evidence to sufficiently a tribal issue facto that the jury should decide whether that was excessive so what what case we're stuck with that the supreme court strange immunity analysis which tells us we need to find some case out there that would alerted this officer that this particular conduct violated the fourth amendment what's your best case is that hanssen well as hanssen but it's also an opinion the judge prager's in authored in one thousand nine hundred ninety three in palmer versus sanderson in she was an altar you know all of those things but what a reasonable officer know that that was excessive force yes under the fact this case where a woman was completely compliant she posed no threat to the but when it comes to their children and you know situations in their house you know there are a lot of officers that are dead because they trusted someone while they were trying to care a resident so you know i'm just wondering in terms of it you know was there anything about the handicapping like say you throw someone down on the floor or you i mean or was it just a standard handcuffing but your client doesn't have good shoulders and that and that arms up she testified that the arms were lifted up this way rotated towards her head no reasonable officer would believe that that was an appropriate use of him cuffing technique under the facts and circumstances how long was she handcuffed before it because apparently she got frightened and she urinated and then they immediately fairly quickly and handcuffed her so that she could clean herself up and  long time your best estimate was approximately thirty minutes but again in the rush of this situation it could have been less but i don't i don't think that's really the point she doesn't dispute that the officer saw her here date on herself and they that is an important issue in a tight handcuffing case where the the fact that the handcuffing is tight and that the fact that the person complains about it becomes the constitutional violation when the officer does nothing to alleviate the tight handcuffs but in this case the injury had already occurred it would have made no it's a relevant at that point that she would have complained about it one out of change the situation what happened in this case to your state law negligence claim we just abandon that part of the case instead deciding to focus on what we believed was the stronger part of the case which i was assessing i couldn't tell i knew was it was dismissed but i didn't know how that occurred right now want to save some time i'm sure your honor thank you very much this court has recognized if it's good to display a violent or aggressive reasonable police officer should know and understand that that is not permitted so we're swears the women in this case let's assume that he lifted her off the ground to court the supreme court consistently advantage parties and other courts it's a very fact intensive right and i'm asking you i'm asking you with particular set of facts that particular set of facts she gets handcuffed behind her back and the officer lift or up and thereby injures or shoulders is that an excessive force case that gets to the jury it could be under the taliban or the circuits ok so now we're now we're fed now we've got your case and we've got we're trying to figure out where and we all agree i think  both show rotator cuffs ripped by your officer at least for purposes of summary judgment by you know the fire officers conduct so it seems like a fairly violent  applied is it not i mean normally handcuffing someone shouldn't result in hearing both the rotator cuff now maybe because she's an old lady it may be because she was in a strange position but it's really some evidence of the amount  applied and she then testifies that he applied a a large amount of force by lifting my arms up why didn't why those two facts together enough to get to the jury well i could skip to the second answer first if i might which were to assume that a constitutional violation occurred we have to deal with the issue of qualified immunity and whether a reasonably objective knowledgeable officer would or should have known that that was and that's why i was  think there's sufficient evidence on the first part that six sets of force may have been used the question is whether reason you objective officer would have known that under the surface that's the second i would not mind if this court chose to acquit we have a lot of cases that happened like that where someone is handcuffed at the back and you know the arms are lifted up then the first time something like this is occur that's not right well the ego thought all the time does it's  it's the language between acceptable and excessive force which reinforces the need again to evaluate totality of circumstances and not focus microscopically and slow motion sort of way on the actual act of the handcuffing itself but in the context of everything that's happening i don't want to go much into the facts because i know the court has been familiar with the prius but this was a very high risk situation officers had not that on the premises before did not know who was present does not know what was present by way of substances weapons firearms or otherwise or where they might be situated all of this occurred going to be no one doubts at least i don't doubt i can speak for my colleagues no one doubts the officers right to  case like this and you could probably try it in a day or day and i have been over with you know but now they go on and on and on and it's you know what i'm saying to you you know  me what do you mean i just there's always a minute these they don't really save much time you know the result the peels and everything else you know you know i've been i was a trial judge or whatever it was fourteen fifteen years we had a lot of these cases didn't take that long to try now they go on forever it's not so much the better good for the law b and in that case there was a remarkably similar alleged practice by the police officer that is quote grabbing plainness arm twisting it around plainest back during it up high to the shoulder close quote the court held was a relatively c ordinarily accepted not excessive way to detain an arrestee and that no reasonable officer at the time in that instance would have known or believed otherwise that is still the state of the law and now we're constantly expanding  that's out of the eighth circuit your honor the there and i realize sometimes we do things with all differently there but it is instructive and what we cite also to a leading treatise on police misconduct cases written from the plain of size  i just want to take up one more digital minute of it was like a congressman get up there you know i wanted to respond to the judge or was the civically regarding the qualified immunity because that seems to be an issue for gushers let's assume excessive force we still need to get to the second step and i'm having trouble finding a case that we have this fiction that police officers read our cases and then follow them but so what's your best case i'm looking at palmer and the problem with palmer is it's it's too tight handcuffs and that's different i think than the manner of applying them so if you've got a well i'm going to get a better case and palmer well i believe palmer can be cited for the proposition that abus handcuffing in any form is ok we have a supreme court's been and i think they're wrong so let me preface it by that but this raincoat he said you don't don't deal in generalities you need a case that it's got something close to the is also significant in this case because it held that the simple act of handcuffing during the execution of a search warrant absent justifiable circumstances is a fourth amendment violation and in this case there were no justifiable circumstances that would warrant taking a woman again not to repeat all the facts you know them but to rotate our arms in such a way that would cause to tears of rotator cuffs and even though doesn't have to win it summary judgment she just has to present a tribal issue a fact in this case the jury judge should decide whether excessive force was applied or not thank you you that are submitted