ok this matter is a civil rights action brought by mr ogles be against a city of lincoln police officer chad hein and a lancaster county nebraska sheriff's deputy named amy less and these position is that the district court erred in granting summary judgment in favor of heine and less than this to all claims in correctly ruling that lesson did not  nebraska incorrectly ruling that there was probable cause to arrest obols b it is residence and incorrectly ruling that heine and lesson were entitled to qualified immunity as to ogle's be excessive force claims against them on the basis that he did not have a clearly established constitutional right to be free from the force applied our position is that ogleby did present sufficient evidence to establish a genuine dispute of material fact as to ogles be in hickman without justification presented sufficient evidence to establish a genuine dispute as to whether hine and less than arrested him at his home in lancaster county nebraska without probable cause and presented sufficient evidence to establish a genuine dispute as to whether hina lesson used excessive force in arresting him our position is that neither he nor lessen are entitled to qualified immunity because they violated clearly established constitutional rights the major issue in this case i guess concerns the united states supreme court's holding in virginia versus moore and then this court's holdings in a couple of cases so virginia versus more of course this involves a couple of virginia state or local police officers who we know the case ok and what's your argument in any event so as the supreme court held that that regardless of virginia virginia law restricting the ability of municipal officers two to arrest a person suspected of driving without a driver's license  because the offense was committed of operating a vehicle without a license or with a suspended license in their presence it didn't matter that virginia law for purposes of the th amendment it didn't matter that virginia law  purported to prohibit these municipal officers from from making this arrest that they had to issue a citation as opposed to making an arrest and therefore his  same kind of issue it's a municipal cop that doesn't have the authority to make stops on state highways under arkansas law makes a stop on a state highway again the court this court says you know virginia st moore says hey offenses committed in the presence of the arresting officer are per se reasonable under the under the th amendment meyer is a little bit different now the issue in mark's meyer was of course as i argue in my brief this rested upon this business of whether the officer who arrested the the suspect was on duty and there was no doubt about it that he was an authorized law enforcement officer of the jurisdiction in which the arrest was made the argument was that he was not on duty he apparently had he was an officer in one jurisdiction and an officer in another jurisdiction there was no doubt about it the offense in jurisdiction two but the key thing in mark's meyer was that the arrest that the arresting officer was an officer of the jurisdiction in which the arrest was made the argument that was made by the plaintiffs in mark's m happens is that ogleby you know he goes out to hickman he gets a call from a friend she says pick me up he goes out there he picks her up the sheriff's deputy pulls up behind him starts giving him commands produce your license produce your registration  he and then she hands in the documents back and starts asking him questions about what he's going to do and he's like it's you know in your business what i'm going to do she tells him that well there's a bill right now you're telling us the facts of the case which we've also read but ok well  wasn't in the city of lincoln i mean that he wasn't inside the city of lincoln at the time this order was given this officer wasn't acting pursuant to any authority that he had under twenty nine to fifteen this is not a situation where the officers officer sees him committing a crime in his presence this is this city of lincoln police officer chad hein he just i mean always be is in his yard he's walking to his house he he  drives these you know whatever seventeen or eighteen miles from hickman all the while this deputies following him he's not chasing him he's not fleeing he pulls into his driveway he gets out of the car the passenger walks away he starts walking to his house he gets in his yard hine we didn't know was a cop but suspected might be after he sort of saw him city cop says hey you know you know i'd like you to come here and that  and there's factual disputes about whether or not hines said sign this ticket or or i need you to sign this ticket or something like that but the bottom line is that heine was a city of lincoln police officer who was on property ogleby was in his yard and our position is that the district court erred in finding that there was probable cause and that was the only basis of the district court found there was probable cause to arrest ogleby was because that ogleby was was refusing to comply with an order given by a police officer well it turns out that in the state of nebraska there is no state statute that prohibits refusing to comply with an order given by a police officer the closest is a state it's found in the motor vehicle statute says that a person you know shall not refuse to comply with an order given by a police officer at the scene of an investigation for violation of the rules of the road or in apprehension rules of the road the only other equivalent state statutes are the resisting step arrest and the you know obstructing a peace officer but that he wasn't obstructing piece of he was standing in his yard and again this is the only sufficiently i mean there was a purported transcript of colloquy xin remarks of this plea call a query that occurred in the county court of lancaster county there's no court reporter signature verification or anything like that we don't rot yeah i mean that's i guess that's right what the district court said i mean i guess we're trying to get into is this heck vs humphrey business is this a barring conviction st of all our position my position as the appellate here is that the apple lees did not present sufficient  ible evidence to show that this actually had anything at all to do with what ogles b s claim civil rights claims are again no signature or of the court reporter regarding these disproportion call if we remarks made at this plea hearing and they don't specifically show exactly when and where this occurred our position is that there was not inside the city of lincoln at the time of the events giving rise to the claims in this case and so i mean i don't know i wasn't there i don't i wasn't the lawyer representing all will be at this  sentially temporally or conceptually distinct from the underlying conviction then hack doesn't bar the claim and again we have excessive force claims here and i think the law is pretty clear that you know even if you have reasonable suspicion or probable cause to arrest somebody for committing an offense you don't get to just you know beat them up the right as you started out here are your whole argument was about the seizure you know so there was no probable cause and now it turns out he was convicted for violating the lincoln ordinance if we accept that evidence so why wouldn't have why that claim setting aside the excess if you want to issue of the lawfulness of the arrest threats because it be it's my position that this or this conviction had could not did not and could not have had anything to do with this claim because a the conviction that we're talking about was a conviction for violating a city of lincoln ordinance and he wasn't inside the city at the time of the events giving rise to this lawsuit noted that you're arguing that right joy to save any of your time for a bottle yes i and i'm down to less than two minutes so i had two minutes will sit down thank you very well thank you for your argument is golden we'll hear from you st i colliton and sheppard may please the court i am jostling golden assistant city attorney with the city of lincoln and i am here on behalf of the apple each had hein the incident giving rise to this case involved a contact between robert citation and began to flee towards his route his residence and i would respectfully disagree with the argument by point regarding that the only probable cause was that there was that failure to comply alternate grounds for this court to rule that the unlawful arrest claims were properly ruled on summary judgment in favor of the apple e's and finally the evidence show that it was the same incident that we're talking about here yes in their requests for a missions that were mid to by obols be that he was cited for these three offenses that he was ultimately convicted and that he had a fine for that and he started out in jail  make i think is that even if there was probable cause to arrest him for refusing to sign the citation that that using a taser on him was pretty severe i think back when all he wanted be that there were reports that their weapons in his home and that just one month prior he had made threats to kill law enforcement officers so both officer high and deputies and had this information went off her hind arrived at the there's the case of versus the city of rapid city which also deals with kind of a failure come to comply of an individual not complying with officers and ultimately when that that individual's turning away they use  taser on him and eight circuit ultimately ruled that that was a proper use of a taser and not result in an unreasonable force and that the officers and tighter title to qualified immunity in that case which i believe i city of rapid city mayor yes i do remember that you don't remember that involving a taser involved somebody being tackled in a parking lot right maybe there's a separate i think i think there might be if i'm just looking at judge its argument that all of these issues occurred outside the city limits and that officer hine didn't have jurisdiction therefore he didn't have probable cause and therefore he should win on his claims against officer hine and  by mark's mire and i think the court can also say also decided that the officer shot to be entitled to qualify immunity because at the time there was no violation of obols because clearly established constitutional rights for unlawful arrest  would reserve or i would not therefore ask that on behalf of apple the chad hind that you affirm the district court's order awarding summary judgment on behalf of apple each time thank you mr durban will hear from you long without any suspicion as long as they do not use coercion to induce cooperation this court in order to evaluate polices and contests like this is evaluated a non exhaustive factor test when you apply to the facts of this case it's clear the district court's judgment was correct definitely some parts are twenty to twenty five feet behind there's nothing in the record indicating that that that it limited his freedom of movement she approached along without any other officers willingly provided his identification and that he willingly waited while she conducted her computerized records check what he mean by willingly what exactly is the testimony did she command him to give the license or the questioning was  request how would you put it well go ahead what was the evidence that the testimony was the question was where you willing to wait while she conducted the records check and he testified that he was and i believe that commands we don't need any facts on the record to suppose support that there was intonation our language support that kind of characterization of deputy leeson statements to well he is i understand the testimony she says to all girls be something to the effect can i see your driver's license and he voluntarily gives a tour yes and at that point she says wait that's the state wait here while i run your license now he's really not free to leave at that point you see because for to put your reasons one he's she he's told to wait or she has told him to wait so she he would be violating the direct command and secondly if he were to leave and drive off i suppose you could walk away but if you were to drive off you'd be violating the brassica statute for driving without a license and registration because she's got it right sure absolutely so so providing consent to conduct a brief computerized record check and that is in question is fifteen minutes brief while o s b as stated variously in his pleadings and as in his testimony and other statements that it was between ten and fifteen minutes and  you know the carpenter we believe what answer would would answer that carpenter the the officer took the identification back to his cruiser and conducted a forty five minute records check and this court decided that that was not constitutionally significant for determining whether a seizure occurred and here given the other circumstances in this case and admitted willingness to to wait during that we believe that this is no more constitutionally identification identification she indicated to him that he does have an lp broadcast out for him she expressly tells him that he is not under arrest and she asked him where he was going further implying that he was free to leave and as i just recorded correctly recognize he did just that he this court until you finally stated today that she was not entitled to qualified immunity on this claim but moreover given carpentering given the facts in this case it can't be said that she violated a clearly established constitutional right by crossing a bright line at most given all of these facts it would be a bad guess in the gray area or put another way we don't believe that the constitutional question regarding deputy lisa its actions here would be beyond debate there's any other civil code cannot have applied to his actions because they occurred outside the city of lincoln therefore a judgment in favor of always be on this claim clearly would result in calling into question the conviction it's outstanding and there's been no case are handcuffing ols me while he was already on the ground and raising him from the ground after the handcuffing and both in her technique and both of these fall squarely within constitutional bounds there was no violation of his constitutional rights whether they were clearly  have been addressed through a separate procedure and is not to be addressed as had st humphrey holes in the civil procedure as a collateral attack on a conviction that has not been favorably terminated in favor of so i have about a minute forty seven left thank you to address this business of nonviolent non flying subjects and clearly established constitutional right to be free from police use of police tasers the district judge found that oval b was not a nonviolent non fleeing suspect he says that that he had twice refused to tell lessen where he was going from hickman saying it was none of her business that's true it wasn't any of her business that he had ordered officers to leave his property because the actually that was an order that he had given essentially to hinds and he was right he was a city cop he was outside the city and that he had fled from the officers in the yard and  repeatedly refusing to sign the citation you know remember here always be in his evidence free materials says that hein taste him in his yard there is a dispute as to when this tasing a nationally occurred hine says he didn't tase him until he was at the doorway and you know his foot was in the doorway ople spies declaration is that he was in his yard hands up  d so this this either here is another thing in light of the officers knowledge the plaintiff had been classified by law enforcement agencies as a dangerous because he possessed weapons that  i mean one of the things that the district judge relied on was that obie had apparently in a deposition had said something that he that the officers might have thought that the that he was trying to fight them and that he was quote tussling with the officers while they were attempting to arrest him this is all later moreover the deposition i'm out of time i'm very well thank you for your argument the case is submitted then the court file an opinion in due course thank you to all