gets versus long and whenever you get ready mr brief will hear from  cyber fully satisfied that the district court had erred and its responsibility and that based on the summary judgment record that it was required to consider it concluded that material facts polluted the granting of qualified immunity were in fact no such dispute of material fact and certainly no genuine dispute of material fact existed i think in this case were judge williams made his mistake was confusing the concepts of probable cause for arrest with the proof needed by a prosecuting authority prove an individual guilty of a crime beyond a reasonable doubt there is no genuine issue of fact no genuine issue of material fact in this record as to what deputy christopher long knew to what he was told by the security guards prior to his arrest of ms gigot so this is the breed's would it be a appropriate for me to suggest that perhaps you start with the excessive force play rather than the probable cause but i would be happy to move to that because there i think what we do is focus on not only the court's responsibility to determine what factual material and are there disputes as to those facts but there is another obligation and that is to determine whether or not those disputes are genuine on three occasions in her testimony gigot use the word pushed pushed to the wall pushed to are nice pushed to the floor she used other words in other pages but on three occasions she used words that were perfectly consistent with exactly what deputy long did when he used an arm bar to affect this arrest because ms gigot would not obey his commands repeated commands and would not surrender herself on the arm bar pushed her to the wall takes you to your knees and you were pushed to the floor with your face first yes your hon against any person who is either actively or passively resisting would be as a matter of law not excessive it is a compliance technique not designed to in so we have a fourteen year old five foot eight hundred pound girl yes so obviously you know where i'm going how about a twelve year old five foot one hundred pound girl your answer is to say i think you he can use an arm bar resulting in spraying ligaments on everybody if they don't comply up again with his instruction one thing i would point out that there are no record of any brain ligaments in this case but certainly if we want to talk and reduce it to the third we have to look at is the individual of an age of arrest if so that individual is of an age to resist arrest either actively or passively once the decision to arrest is made it's not the off your top of geishas to say now how should we do this that is the least painful that the may take a little longer his he had made it he had an obligation to a rest he had an obligation once he had told her that she was under arrest to press forward and that's what he did but he had to he had an obligation often not an obligation but he had a right to take her into custody absolutely announced arrest and the question is when you have someone who resists arrest and doesn't comply what may an officer do to bring that person in custody and your argument that the officer used straightforward police technique in getting handcuffs on somebody who resisted because absolutely there is no specific definition every situation is different the supreme court only another way and there's a reader that is a genuine disputed material fact now that's what you just said not here she testified on three occasions that he she was pushed and her attorney conceded at oral argument that it was an arm bar that was used that's at page twenty eight of our brief we cite that in the joint appendix there is no dispute that an arm bar was used she was kicked she wasn't struck she wasn't slapped it was over like that because that is what an arm bar is designed to do your to the floor your hand cop in seconds and it's done he didn't have the obligation to wait until she finished her phone calls until her parents arrived until she decided to exceed his request he had announced she was under arrest it's no longer a debate it's now a police officer who are filling his obligation to take the person into custody using the mill sed reasonable amount of force as minimal as it was here to effect that arrest and that was what was done here we are not yours really i use just a different concept you said that the technique was proper now you said that with the minimal amount of force was used how do we know that oh basically assumes that some force is going to be used it has to be and that arm bar is designed to push you to your knees and then push you to the floor that is what the plane of testified to that what her attorney conceded what was done if this were a case where he had taken her arm and ripped it behind her carrying ligaments causing some serious injury or even non serious that would be another thing if he took her to the ground by the arm bar and then kicked her that would be another thing but there is nothing to show he did anything more than affect the arm bar to your knees to the ground hand cupped done and there is no physical injury here to this individual space her arm she made no complaint of injury it was her parents when they arrived she sat and not only will i have your job deputy but she's going to the hospital because she's was done here with minimal force not in violation of the fourth amendment and if using an arm bar was inappropriate i beg to differ and i believe that the summary judgment record establishes the saucer acted within the confines of fourth amendment used only minimal force to effect an arrest in seconds without any substantial injury to anyone jurisdiction over this case assuming that it does however we believe that there is no basis given the highly disputed factual record below to recognize or to protect let me ask with respect to the excessive force claim shouldn't we look at miss jackets testimony on that absolutely and i thought that that was the argument being made that we accept what she claimed happened and and and the other objective record and determine whether that's excessive force it seems to me whether it's excessive force is a question that you can argue but i'm not sure there's any facts as well the there is the exceeded she was resisting arrest she snatched her arm away he tried to get her co gave her multiple commands she said she was talking on the phone she didn't obey him she conceded that and then she described how he then use force to put her in handcuffs if the question is whether the force she described to or used to a person resisting arrest was excessive and i'm not sure there's a dispute there with respect to the arrest itself the decision to arrest there's not even an effort to engage in different facts the officer was told by security mall security of the circumstance and no one has disputed what he was told where's that where's the material fact that's in dispute in this case if i may yes as to the former question first and foremost it is highly disputed i would direct attention to join appendix seventy two and join appendix one twenty four for example what the officer is saying first the first question that comes up the officer is which would take her to record in terms of the record her word question number one is when did the everest actually occur at issue what happened in that particular incident factually is that he conceded he said he was under arrest and she pulled away she did not concede that in fact what he says is that she had my arm you know what she says is that she was not told that she was under arrest until after she was assaulted but the to draw attention to the assault and the way that it played out she was there in the room and on the phone she was talking to her mother so that her mother could monitor what happened because at that particular point in time she'd been falsely accused she had been search the evidence was clear that she hadn't stolen anything what happened w so long as he said to her i want that she with her before she was arrested absolutely she had been search and this goes to the foot to the latter question and i want to try to concentrate search for the security guard who made the representation to offs along who actually in this does goes into it that doesn't do it off for long does well it does in part and i think that if the court did the i don't want to confuse the questions this somewhat related but as to the former question good's testimony which is a one twenty four is that he snatched the phone but his testimony is that she sworn at him doesn't matter it's all up here except the question is whether it's material do you accept her statement of what occurred to evaluate this if you accept her statement as to what occurred he's basically saying accept the statement i did not violate the constitution or at least i didn't violate it with the reasonable belief that if then we look at the latter question to get to why at that particular point in time now the question in this case is whether we consider immunity at this stage but well that goes to the reason i was denied is because there was a material fact in dispute and the question is what material fact is in dispute if you accept her statement whether there was probable cause to arrest her at that particular point in time and are you asking on the knowledge that that isn't the issue the issue is first whether there's a materials dispute a fact as to what he saw said he saw on which he made the judgment to arrest and and that's on the spirit and the second issue is is there a material fact as the force that w used now i'm trying to get the media's here trying to decide the merits of it you know i'm not trying to decide the merits i'm trying to go to the underlying question you asked as to probable cause and your question preceding that was whether or not there was a factual basis for his magnus well we are disputing that because the representation that he's making is at issue it is that the question is the credibility of what he was told he's relying on w r saying what evidence in the record dispute what he said what you don't have to evaluate the evidence he had some knowledge and he represented what that knowledge was he said he was told by the security guards a b and c now tell me what in this record creates a dispute about what he was told first first and foremost he was i'm going to get to that first and foremost we never had an opportunity to depose of so long the security guards notwithstanding that to answer your question you need to focus on the issue the issue in this case is is there a dispute a fact in this record which would preclude us from doing a ruling on an immunity issue on the issue on the disputed fact is whether he had enough evidence or not not whe evidence what was he told he was told by in a security guard who was with mr gates in the store when she was searched and he was told that this lady was believed to have stolen something even though she had been searched in the off i understand you see you keep going back to the merits i'm suggesting you may win on the merits the real question is at this point the officer making the arrest is told something he didn't witness it he's told something and the question is is there a dispute about what he was told he said i was told a b and c i was told she they believe she stole something and whatever he said they told and no one in this record has disputed what he was told the question is the reliability of what he was told i know that's not the question in part it's a hearsay statement  statement it may be out of the sky it may be insufficient but it's still the only evidence we have we can evaluate the evidence later but the district court said there was a dispute a fact about it that had to be resolved when you're arguing whether the evidence was sufficient which is a legitimate argument but what at this stage of the game we have to take the undisputed fact that what he was told and to decide whether there's a dispute a fact it's there whether there is  what is the issue of jurisdiction not whether a sufficient to the extent that the probable cause is based on the security guards statement to him and if that statement all  officer had he had the statement from the security guard and he conceded it and no one's disputed that but that's not the point that he made the arrest you know that that's what he decided to arrest based on that evidence he didn't have any new evidence to it on what he was told by the security guard right he had the testimony of a not know he had the evidence i asked him did he have any facts other than what he was told by security  he already decided to arrest or she told him that she hadn't stolen anything and at that particular time he has a conflict so he has the officer the questions who are said i think the officer and him he conducts an investigation ok at a certain point he decides not to arrest misjudged it's based upon that particular assessment here in the interest mysterious because he wanted the phone and he said that she refused to give it to him and then she swung and that triggered the particular a rest he didn't order to put her hands behind his back he did not say what you're doing you're arguing the merits of the case you're not arguing whether there's a dispute you can take his testimony about what he was told as nobody disputes that and you can take her testimony about what occurred when he tried to arrest and on those two bases there is no dispute and then that leads to the question of whether we can resolve immunity question when you get to the question of whether there's immunity then you may have to say is there a constitutional violation and was he recently was he making a bad guess in a gray area or should he have known he couldn't do that under the fourth amendment that's another issue but the issue of jurisdiction whether we hear this case now is whether there's a dispute a fact that's material to the immunity or to the extent that you exercise jurisdiction all issues well the i'm sorry your whole issue or i don't know there's the whole issue because you know you need to tell me why there's a dispute a fact you know you have to dispute a fact because the issue of probable cause means that when you rely when the officer you're just disagreeing with his judgment that there was probable cause and you can argue that i'm not this is being made a judgment about he said i believe this is probable cause but regardless of whether it's probable cause the question is the evidence on which he relied to make that is und i think to the extent that that evidence is undisputed the question still comes it into question the issue is still whether that evidence is credible you know it come into question as to whether  it's but it's if it's incredible it still can be undisputed but if you don't even if it's a probable cause issue now it's not a problem cause it's question whether this is you understand this officer has a right in going about his business to be immune from being sued and when the trial comes up and he's accused of something long he has a right to have our court review with immunity unless unless we can't resolve facts and they have to have a trying to stand us and the district judge didn't rule on immunity because he found facts at issue and i'm suggesting to you that the court just looked at a dispute about who pushed who i mean who kick what and said there are a lot of disputed facts just like you said a bunch of spirit facts but i'm saying as to the immunity issue there's no disputing that the question about making the arrest was made by the officer and that officer made that based on one call that a collection of data that's what he was told by security guard and nobody disputes what he was the security guard didn't say i didn't tell him that the judge williams the credibility straining and where we are unique is that before we allow in a case at this early stage the case in all the cases that he supports there is full discovery let me ask you this if we assume you're right that he's totally incredible that's an issue that can be decided at some point you can always make that are but the fact that somebody is testimony is totally incredible doesn't mean it's been disputed did the question is who's incredible i'm not talking so you're saying the officers and credible i'm saying that put the there is a factual basis based on this record that the officer is saying that the security guard who communicated with him told him so we misrepresentations three things that were not true and that that was a predicate you know they were not true but whether the question is not whether he knew the question whether have an opportunity to matter to this that you have to show he's making the judgment about a rest and he acted on information is there a dispute about what he information he had there isn't but with all due respect if rule generally allows for the plaintiffs to have some opportunity to discover the record in this particular case an officer can make it we put all this record here i'm sorry so that's all this record looks like depositions were taken she testified  at that particular point in time he was that he when he became a party that discovery had been stayed so there was no discovery when you all became so we're actually here strictly speaking we're here on a motion to judgment and there was an affidavit put in and there was a depositions put in front and the court considered all that but but but at that particular point in time we could not do it we we at the time his motion was filed we did not do any discovery did you ask for any for the summary judgment motion we in the trial record in the diff in the paint is motion we certainly we are you that it was premature indeed and that the court should rule until we have w understand because you were saying that there was questions of fact but did you when was a motion for summary judgment  it was decided december twenty t or looks like the the so called a motion to dismiss or alternatively motion for summary judgment by office along with or about june fifteenth two thousand and ten it's correct and you're saying as of that day june fifteenth two thousand and ten you had not you had not deposed officer lo we never had a chance he found his motion right after the court surely have to the court ruled that we  the early to the extent that when we deal with office along the other discovery was going on you've got to remember in this particular case often long it was some question about who he worked for because he was an off duty police officer working and then whether the action that he took was done as  a i totally get it i totally get it he was seen uniform he was in you know he was in uniform he was off duty yes working private security and that private security function was actually in play until we actually executed the arrest and that is when after he took her back into the room and then began to question her she her position was i don't have to ask you questions that's what he took the phone and he says he she swung at him but that also goes and  have on page two forty six of the record her responding to your question when did he tell you you're under arrest and she says after i was caught that's correct said it was premature relative to office along because our so long was making a statement about individuals which were flat out untruths because he said that these individuals if this individual for example saw that she was searched then and that she didn't have anything for him to tell us along that she was stealing or to say that she was uncooperative when in fact she was brought back into the store and cooperate it this is all untrue or that she walked away from the manager which was also untrue and then in addition to that there's  also long says that he received a call from someone saying understand but they proceed this was a full blown motion for summary judgment with affidavits and evidence being considered and no one asking for additional testimony and we and everybody had an opportunity to do it and the court looked the standard you filed a motion i'm just looking at your motion is filled with facts and your argument is there material facts in dispute i think it's a red herring set judgment motion and no one's complaining that he didn't have enough time to depose anybody you know on a widow the court that it was premature we told the court that because we thought that we did with motion we did say that there's an argument section that distinctly says that the motion is premature you said there rest because it's factual disputes and the implication is that there are people that we have to depose to verify whether salonga set telling the truth or not very briefly mr temple had every opportunity if he felt that officer long's motion for summary judgment was premature to seek relief under rule fifty six d he did not do that the plaintiff had been  the plaintiff had all of officer long reports and his detailed affidavit so instead of coming to the court and saying this is premature we need additional discovery the plaintiff made an election  concerning the manner in which the arrest was affected and that was confirmed by counsel that oral argument i'll close with this opposition is that yesterday even if everything that he was told is that was a bald face i'm saying that your position has to be that even if everything that was told to him was them all the biggest lie it doesn't make a difference you never know if there is in addition of reliability about the hearsay that the officers ha whether or not it's true or a bald faced lie if he has the right inability to rely upon it then he can use that information process it and establish probable cause and that was done here both for a slide that goes to guilt or innocence not to probable cause he's not conducting well if it's even more refined than that because the question in this case is whether the officer was deliberately violating the constitution etc and he's acting on information given to him even listen to a single howard what he was told he was able to get all this before he even got his that's correct that is correct in fact her father according to her testimony her father specifically asked to speak to the officer yes which is what record also on that record was ms gigot conveying the threat from her father officer long that my father is coming here to kick your ass well she didn't have to convey anything of office a law had shown the respect to take the phone and speak to the person who she just identified as her parents respect if he did tell her if he did to his daughter are on this record drawing inferences in favor of the plain it if he did  daughter his fourteen year old daughter what he did to her he'd be subject to prosecution for child abuse your honor i get all due respect i think that's incredibly strange this officer actually probably because he doesn't need to act as a human i when take lobster and speak to everyone in the family if he had probable cause to arrest yes actually it wasn't on just are you to be back anybody who interferes with the office that's right that's they that you walked up to behind a car where they're given a ticket and said i happen to be my officers go back to your cough incredibly you're interfering with my process no officer is going to be drawn into those blind alleys and i he had an obligation to conduct an investigation here and investigat detention he established probable cause to arrest and use minimal force to affect it qualified immunity pretax all but the plainly incompetent are those who knowingly violate the law out of the believers out of mississippi where i was a white school teacher went with students black students down to to a lunch counter and the question is whether or not in fact they were r the plaintive couldn't dispute whether or not in fact he was in coots with them at all because then they couldn't they couldn't read minds but then he said in those circumstances there was just a credibility security guards who had seen this young lady search found nothing no evidence they looked at her bag her friends bank they found nothing why would they turn around moments later and tell all of us along something like that that was totally different then that what the what the least what the what the the plaintiffs who control in that similar type thing because for example you didn't bring forth the affidavit of the god of the guards which is kind of interesting but the that's what he said the first thing i do i guess about was practicing the didn't you tell my client this was true or not you didn't do that either i mean there may be reasons why you didn't because maybe you got your new case to where you cave under the circumstances police officers watching someone directly violate their rights to discriminate in that lunch counter is just unbelievable that they would not be in cahoots they distrust and say oh but you can't prove that we were who's the state store he saw nothing that went on immediately outside it ok he was approached in the food court and told information information that certainly seemed reasonable and reliable as it came from the storage assistant manager through the security guards i must  stating you didn't talk about this issue believe in the question is is there under the circumstances any reliable in disha that he would be ever told that given that is so in direct contradiction to what just full of her bag i mean that then this is bad just seems so inconsistent not to question whether or not if he heard that naked believe it but it is so inconsistent that he would ever be told that because that's where the case turns  hallway off the food court area and it was only then that he made the determination that he had probable cause to arrest but to engage in this kind of speculation and placing burdens on officers that simply could not be only enforcement of the laws of the state i think basically would read the defense of qualified immunity out of existence and one case cries out for its application this is it and like i said at the