kindness and christopher randolph were all off duty on may seventeenth two thousand and fourteen and they were working at a private institution called the zone car lounge zone car lounges own and operated by the cleveland police patrolmen so season completely separate from the city of cleveland their current employer at the time in this case the bar is actually an underground bar with one entrance at the front one entrance at the back taking in the plaintiff's allegations as sure which was was which is what we must do we are arguing that these officers are entitled to qualified immunity based upon the fact that mr calvert supposed a serious and dangerous threat to the hundreds of patrons in the bar that night  which can also be used as a weapon disputes or his behavior was at the time the first encounter of the officers but he does not dispute that he possessed and brandished a deadly weapon and the possession and brandishing of a deadly weapon although he is claiming that it was in self defense as his interaction with these detroit supervisors including to treat sergeant to other detroit police earlier possess a weapon if he is as he climbs posing no threat to the officers at the time of their first encounter with each other you're off the defendant's would not be entitled to be the mup because he had a knife earlier would know what we are arguing is something that's not disputed is that at the time according to the plaintiff's allegations at that time there was a dispute there was a verbal dispute that's not denied and then that turned physical in some aspect that is not tonight mr calvert's says at some point that he was being assaulted by these detroit police officers obviously there is some factual issues there but taken the allegations calvert's in this case we would argue that at that point the officers have a right to seize this individual and search him pursuant to that seizure as such the seizure in this case taken the allegations by the plaintiff was lawful given the fact that the seizure was lawful there's no constitutional violation doesn't he say that he was on the four handcuffed and they beat him and kicked him after the on lawful seizure they're relying upon you agree that would be excessive force sorry if you of somebody put him on the ground and kick him and beat him no offered immunity the way that would be an issue of fact that would be determined for the journey that's in his declaration as it will be we are arguing in piecemeal part can be considered an qualified immunity a majority of his complaint relies upon the fact that he was unlawfully seized and then he was unlawfully searched incident to that seizure and we believe that these officers would be entitled to qualified immunity for the unlawful seizure that the complaint alleges is making three claims you don't get caught fire immunity on one of them but you get caught for an immunity to correct that the he would that these officers would be well of course we would never concede that the use of force was reasonable given the circumstances but essentially the crux of our argument here is based on the fact that these officers had they reacted as alleged by the plaintiff that they were lawful in seizing him this this individual mr calvert was never arrested that day he was seized and this court knows in a criminal case pursuant to the investigation officers given circumstances such as these would be permitted to seize an individual and at that point when you see is them you search them and upon the search two weapons including a deadly weapon of a two inch knife were discovered as such the plaintiff should not be allowed to go forward with any claims that he was on lawfully seized and that he was unlawfully searched incident that arrest with no constitutional violation to the seizure itself there can be no nine hundred eighty three claim to the seizure and the search incident to that seizure at that point we are now onto the third issue that you have arose in which is the allegations that there was some unlawful use of force once this individual was detained and seized because as we know he was not arrested the court erred in this case by not considering the individual analysis of these three officers they were considered as a whole and that went to both acting whether or not all three of these officers were independently acting under color of authority that night as well as the consideration that all three of these officers acted equally in their actions and interactions with mr calvin's and considering the factual allegations in this case we would argue that you must also consider the reasonable inferences which the record does not dispute is that he possessed that deadly weapon and that he was lawfully seized are you talking about when they beat him up the allegation of after the seizure that there was an unlawful use of force so we should there's some inference to be drawn by the fact that he had a knife did i'm sorry does that justify them no as in force officers are permitted to use force until the threat has been neutralized and that is audio you think is decoration at least with respect to that part of it i mean taking is declaration is true he wasn't a threat at that point where he was on the floor he was handcuffed and his declaration is contested by his in rocketry answers as well as the complaint itself and further contested by reasonable inferences that can be made on the record which is that they all have to be drawn in his favor when less if i would argue that when two parties told different stories one of which is blatantly contradicted by the record so that no reason would leave it a court should not adopt that version of the facts for purposes of rule in our nation for the facts it's not even the version of the fact that your clients put forward i mean factually their argument is that somebody did this correct and that is the plaintiff's actual argument as well because in his complaint the plaintiff states are three off duty police officers responsiveness as well as some other unknown alleged officers yet there's no john doe jane doe or anyone else alleged as a defendant in this case we would further argue that that that was one of the major errors that the court did was that they did not conduct a separate analysis for each one of these three individuals based on the allegations contained in the complaint in the declaration by mr kyle that in addition you're talking about an individual or as determination for the three defendants with respect to all three of the coins or just the excessive force correct with all three of the claims as was the color of the color of law claim is as this court knows we are not allowed to proceed on a nine hundred eighty three claim unless there is some evidence that these officers were acting under color law and we would say that under a law determination the court erred by considering the fact that mr calvert's knew these three officers to be police officers we believe that that would be an  permissible factor this is a cop bar this is a private bar that approach typically only allows cops and relatives of cops and other people they have there and there's an allegation that they have badges and guns but that alone is not exercise the powers of their office and the records and the declaration of deputy teach chief joe mean o'neill definitively confirms that they were not on duty or being compensated by the city of cleveland police department for any of their actions that day nor did they have a departmental duty to respond and act in accordance with this bar fight that occurred that day those are some of the main points that we believe that the district court should have piecemealed this out in multiple different ways when considering qualified immunity under summary judgment there should have been an independent officer analysis for each one of these three individual mens taken on the facts alleged by the plaintiff because that's the standard that we are working under if would get called part of unity and which ones would i think that there could be a factual determent it individual the allegations and for that i would even direct the court to the summary judgment opinion by judge all over where he he basically goes through can taking the facts unlike most who are the plaintiff the kindest and randolph intervene in the altercation with the detroit police officer announce we're kind of some random work together to handcuff account that soft circle more had absolutely no interaction with the alleged seizure of mr calvert's there should have been a separate finding and separate analysis done for each one of these officers and that is required given these situations this court has found in the past that when additional courts not conduct a review of an officer's individualized actions remained for that consideration is warranted and that was one of the issues that we raise in our brief as well further we believe that the we believe that the district court  considering the law in this case when given the allegations made by the plaintiff that these officers once again should be entitle to qualified immunity for at least the seizure itself and that the search incident to that seizure was lawful he would be precluded from presenting any such allegation at trial that the is that the seizure and the incident in order to to give the relief you walk which is a determination that qualified immunity applies we would have to hope that it is legal to see somebody and then baby up even when he pose no apparent threat to you at the ten when i asked i would strongly suggest to you that that's probably not the law and i am not addressing the secondary effect of the rays there just that given the rebuttal please the court the courts corrects there's three issues that the defendants are talking about here we only want to trial on excessive force if there is no dispute that the right the judge given is just framed that a person who poses no threat to the officers cannot be beaten gratuitously when he's laying on the ground in handcuffs the court should send the case right back to the district court which should have a trial on the facts that are disputed about that issue  this appeal demonstrates the opportunity for abuse of these kinds of interlocutory qualified immunity appeals this case was set for trial in december of two thousand and seventeen by filing by filing this appeal by coming to the court today and not even being able to say states allegations as required by rule eight the facts underlying the claim and alleges that there was a violation of the fourth amendment in briefing on summary judgment the plaintiff focused on the excessive force claim and that's exactly what the district court held that the right at issue was clearly established to not be subjected to katrina's force when an individual being arrested is not a threat and all are all three of the defendants similarly situated in terms of who carried him up stairs or who and of him or who the facts found by the facts by the district court drawing inferences for the plaint are that two of the defendants used force when he was on the ground all three of the defendants carried him upstairs and threw him to the ground which is long after he had been handcuffed and neutralized so are you specific about who did what yes to the claim just declaration which is attached to the point of summary judgment motions docket entry thirty seven  the first exhibit this is starting a page eighty three seventy nine in paragraph nine the plaintiff of there's randolph and kindness beat struck and kicked me while i was on the floor the all three defendants carried him out to the alley these defendants banged to me as they carried me up the stairs and then threw me against a concrete wall and to the ground  i believe you asked my opposing counsel whether this kind of conduct could possibly not be known by reasonable officer to violate the constitution and you didn't get a straight answer there's no court in the country is going to hold that carrying a handcuffed man who neuer pose a threat and throwing him against a wall into the ground doesn't violate the fourth amendment there's an allegation that foam or unkindness i don't know how to pronounce those were each wearing their badges but not randolph so does he have a better argument on whether he was acting under color state law the argument for him the question of whether they were acting under state law is not before this court because the court doesn't have jurisdiction to address the qualified immunity question it certainly doesn't have the jurisdiction to address any pended issues about the  because it's you're saying it's a fact just here well no your honor i'm saying i don't have jurisdiction because there is no jurisdiction for the qualified immunity appeal right because it hinges on differences and facts story the qualified immunity deal is not before this court because the defendants have refused to accept the plaintiff's facts and because they're not even making a qualified immunity argument that the right issue wasn't clearly established that we had a motion to dismiss that was denied and the court very clearly told the defendants you must accept plaintiff's facts you must argue that those facts don't violate the constitution and the defendant's flouted both of those orders they continue to flout them and that's why the court should dismiss this appeal and we believe i pose a serious sanction against the defendants for filing it and because the court doesn't have jurisdiction over the qualified immunity appeal it can't address the separate question of under color of law has to kovach question is not a qualified immunity question and it's also it's this it's a secondary evidence based question even if it were within qualified immunity the court couldn't address it because like all the arguments the defense want to make here it's a quibble with the district court's findings of fact the supreme court settled in i think hundred five in the johnson versus jones case the questions of evidence efficiency well can they get out of the can they get well what about their argument that well we don't know seems like there's a seizure in the search claiming that because it's a general fourth amendment allegation and it's clear we establish if this guy or it's not clear we established when this guy poses a danger and has a knife that we couldn't yes but those claims are not in this case that the question that we're here we want to go to trial on that the judge ruled on was whether excessive force was used that these issues of arrest or search i don't think the facts are sufficient these weren't issues that were fleshed out in the brief i think that there was to the extent i'm thinking back to the brief there was an argument made by the defendants about the arrest and in response to that plaintiff's stated pretty clearly we don't have a claim about the arrest we don't have a claim that he was seized that that the officers couldn't arrest him our claim is they used excessive force against him and i think that the way that  not consistent with the law that when officers have authority to arrest a person because that person poses a threat they do not have authority to use gratuitous violence against that person after the threat has been resolved and when there is no danger to the officers or to any other person  so because the defense have not raised factual issues that this court can consider in this limited qualified immunity appeal because the defendants have not shown that the right issue to be free from gratuitous violence by officers was not clearly established the courts had dismissed the case for lack of jurisdiction as we've argued based on the abuse by defendants of the appellate process to extend this case into disadvantage plaintiff the court should enter sanctions to stop these defendants of the stop other parties brief he would argue that that presents absolutely no basis in fact nor law this court typically would only word sanctions in such cases that there was inappropriate filings inappropriate citations to law frivolous  citations law and none of these sorts of things occurred here the city of cleveland has chosen not to indemnify these officers these trees clean police officers are being sued independently they are just as disadvantaged as the plaintiff in this case and they  same rights to pursue this qualified immunity in our yearly appeal but you're not can tell you're really not contesting whether he's has a coin for excessive force based on his own allegations unlawful search incident that seizure would argue that based upon the law and the facts presented as presented by the plaintiff the he would that these officers and any officer in a situation presented to them a reasonable officer given the circumstances that are undisputed and supported by the fact mr calvert's possess a knife in a very crowded bar would be would subject him to a lawful seizure and search incident to that and that officers would be entitled to a piecemeal qualified immunity based on the law and then analysis those of the district court's opinion say i'm going to work a seizure and search i'm denying immunity with respect to a seizure or a search claim an excessive force claim it tonight is to all aspects of coffee but doesn't mention the seizure claim in a search of course there's the district judge mentioned i would have to defer to the opinion i know that the allegations that were made by the plaintiff himself if you doesn't mention the sub words future and sort of question did you have a basis for the appeal yes because we made multiple arguments based upon the law that was presented and analysis the judge all over made pursuant to that law that's made