court my name is shanghai mccullough representing the appellant we have two separate uses of force against mr dean a reasonable jury couldn't for a legal retaliatory motive in both in the st incident regarding the excessive use of the pepper spray the district court simply misunderstood the body positions of mr dean and officer gibson at the time of the bourse the district court's order assumes that mr dean was handcuffed in front of his body with his legs tucked up and the opposite was pushing on his legs the actual facts are that mr dean was on the floor and handcuffed behind his back and officer gibson was kneeling on mr dean's chest a reasonable jury could conclude that he was clearly restrained the south in the nd incident offers officers restrain mr bean by pushing him against the wall thirteen officers were there and they were all capable of controlling the situation after mr dean was restrained officer jones decided to shout get him in there and the o then shove mr dean into a broom closet where there was no camera they proceeded to be the daylights out of them for at least a minute while repeatedly shouting you done messed up a reasonable trier of fact could infer a retaliatory intent from that alone we urge you to watch the video which shows the area outside of the broom closet authors were not in danger of losing control of mr dean before he got thrown into the closet and the ones who stayed outside of the closet remained calm when does ask a question about the statements that were made or allegedly made by officer jones is it your position that that direct evidence would be enough by itself or could be enough by itself to show the forbidden motive under the amendment what if the will of the factors came out the other way but you have the statements then what you  yes your honor those statements alone provide that direct evidence however we need to consider those statements with the context so yes though that is a proponent of the direct evidence however based on the pan text and what we can also see and gather a jury can infer the of cers were retaliating against mr dean so we do need to look at the totality of the circumstances i just i want to ask you a just a follow up about how the with lee factors and the direct evidence interact so what if you had a case where it was clear under whitley that a reasonable officer who would use force say it's one prisoner not in handcuffs one officer the prisoner lunges at the officer and so the officer uses pepper spray but while he's using the pepper spray he says i'm not scared of you buddy but you disrespected me and now you have to pay the price so under the factors objective we speaking a reasonable officer maybe could use force to control the situation but when we look at the direct evidence what the officer is saying he's saying he did it for retaliatory purpose how does that case come out that hypothetical in regards to using the pepper spray and while making statements we need to look at the context as well in regard to de minimus force or i'm just trying to get at why do you need the whitley factors if you have direct  to hear it is actually the officer making the inflammatory statements that provide a direct window into his retaliatory frame of mind so there we can see that direct evidence it through the state of in addition and the district court improperly relied on the opposite as testimony officers inconsistency is have never provided a reliable account of the closet and incident for example the witness and as i understand your argument it seems to be your focus is that the district court just didn't look at the you the right standard it did not look at the evidence in the light most favorable in this instance and that present problem at least in terms of whether a reasonable jury could differ and you could get around a summary judgment at this stage if the issue of fact is created is that essentially where you're going with this repeat the question my question really goes to just look at it whether we're talking about the subjective pronk of do objective one of peers to me if we focus on force with the subject of wine which is the object which is what the supreme court has directed us to do pepper spray gets around that and maybe even the use of force it in and of itself gets around the object of one so the focus here is under subject one in the district courts treatment of it if i'm understanding your argument your main point is that the district court did not view this evidence in the right light in in the light favorable to the defendant here so as to yes your honor yes that's exactly right so say going on to my point and doing it is then it would seem to me this specific thing to do would be to point out those particular facts that you think and in the st incident although we don't have video footage to review that but in the nd incident we can see that the officers that were not feeling a sense of urgency or a threat after he was restrained against the wall then they decided to throw mr dean into the closet however the district court did not consider they misunderstood the facts of the positioning of mr bean and the officer when he was pinned to the ground so these are examples of where the district court missed and they also did not consider jones's statement which is direct evidence into the retaliatory state of ask you a question about a clearly established prong which the district court didn't rely on what the officers are arguing now so i take it that you are sort of more or less conceding that at the moment of the head butts you know some force could have been used to restrain mr dean so what is the what is the case most clearly on point that says that it's you can't use force against an inmate who did present some kind of a physical threat but no longer does because now he's restrained what's the case most directly on point for that  your honor i would point to may and here the man cave is a great example of a very violent inmate in that case and the facts show that man is unpublished your honor i do what's the closest authority in a published authority because i think for clearly established purposes we look at published cases the restraint of an inmate is illegal and unacceptable your honor to have any other questions i'm happy to answer any or any further questions that you may have whatever might have happened on his account when they pushed him into a closet with no camera and beat him for a minute while making statements indicating retaliatory intent put that to one side when you look at the st one which seems much more reasonable but you want us to look at them together i watch it so i'll be watching oh i'm sorry your honor i may have overstated that i want you to look at him separate but circumstances here but you do have to break them up and what judge harris was alluding to the pushing into the fall to be one minute you want to tied it into the st and see it in form that i don't know what it informs except a retaliatory action that happens in  closet but beyond that if we're looking at the evidence this is where gets really difficult for the disco to anybody look at is it is on the summary judgment stage we're only looking at the evidence in the light most favorable and when you go in to that the evidence at least from the defendant's perspective was he was down on his handcuffed behind his back lying on the floor with gibson's knee and weight on a top of his chest you can't do a lot of head clinton in that kind of position at that point and then so the question really becomes you know what point it could start out that they may have been justified in doing what they did but is there a point when we view th graphic language that was used in that you've messed up something to that effect in that you know we're going to get you sort of thing those are that's that's evidence to to look at in the light most favorable that could lead to a conclusion that a reasonable jury could decide this was in fact beyond the penal logical justification this was more retaliatory as malicious type kunda that's the issue i think that i see in the case from the subject all ok so i'm really talking about both i'm talking about of human life if it's in the light most favorable and even with the pepper spray the question is was he said dude on the floor with and that is he did temper it because of an issue with temper of the pickling the use of force with regard to pepper spray is immediate contamination they offered him the contamination in fact they were rocking him there when he  behind his back and the officer has a knee to his chest holding him down what is the need for the application of force at that point that's really where we're going and then the relationship with the amount of force being used at that point those are the factors we're looking at and it's not a question of whether we can find an interpretation that would support ok with the fact is not needed the issue is whether a reasonable jury could find otherwise otherwise everything you're saying is quite reasonable but is that the only conclusion to reach from this boy is there a jury question here that that can arise from said you know he could do anything he said he's out i'm not sure how much that week that goes but he says it and then you got the offer of simply basically seeing statements that could be interpreted as though he's really he's really not happy no one's happy about being hit but it was his body being hit but it that you missed that now basically it's almost we're going to get you which leads to the nd incident i know but but the question is is that sufficient evidence that would that would take this to cannot you can see as any more so i cannot well all right sorry i'm counsel so i have a question about this it seems to me in reading the district court's opinion that what the district court was saying was something like this look and similar to what you were saying there was a moment when there was a head butt and it was necessary to restrain or get under control this inmate and the force w used pretty close to that time you know immediately after like there's almost a safe harbor like once you need to use force you get a couple you get like a little buffer zone around that during which you can continue to use course because a reasonable officer might think that was necessary and my concern is that we have said in so many cases that that is not correct that this is a nd by nd inquiry and that at the very moment force becomes unnecessary so even if it had been necessary until that at the very moment it becomes unnecessary you have to stop using it and i looked to me like the district court was not applying that standard but it was saying something more like you know close enough it's all part of the same couple of minutes and of course was necessary at one point you know we give you a little wiggle room that's just not where our case law is so i'm hoping you can address that for me well you're right that's not like you know that's not what th together he saw then you went to pepper spray and answer your question what would he have seen based on this undisputed record or at least we have to take in light of the art of my correct he would have place where the district court actually misunderstood the record and what the officer would have seen so he's got one officer kneeling on his chest while he's lying on his back what are his legs free to do i don't understand like i suppose  could be his feet on the ground but that's all he can do with his legs it's not what the district court fought which was that the officer was leaning on his legs to push his legs down if that were true then conceivably i suppose he could have kicked out with his legs at the officer but if the officer is kneeling on his chest his legs are behind that officer what's i don't even understand what the legs could do why is that even relevant that his legs are free well he could immediately before the pepper spray there's clearly no longer a threat in the case there's a group and there's greater use use of chemical agent and there's refusal to decontaminate for hours after jones i just want to make sure i understand your position on these statements is it your position that unless a claimant can show malice indirectly under the whitley factors you can't look follow words from the end i think are completely different situation because that was those were the case the one i believe in i'm published an opinion and so are you that was cited by defendant and they particular case the when you your counsel let me just i just want to make sure i understand i do understand and i want make sure i understand what you're saying so yes an officer statements can be relevant evidence in your view though the district court did circumstances under which plea and it seems as though a reasonable officer would have applied force for a permissible reason but in applying the forest this officer says out loud i'm doing this in a retaliatory way i am doing this because i'm angry at you how does that case come out or i think if i go to the jury could you have direct statement saying i'm circumstances that it's just you can go to the jury the statement if the statement  resistance under the circumstances that existed in this case and here are playing this note that he was taken to the wall and it and that he was restrained by four officers and and so the two movement in the closet was unnecessary so these officers had to move they couldn't just stay right there he was not in the confines of the bill they had to per policy have him  to qualified immunity the dissent is obviously understand that the cases that i look at do not have to be materially different they do not have to be that plea like the finding a violation and and qualified immunity and offered as a as a letter of additional authority that case from the th circuit which is currently pending at the u s supreme court on a petition for the court said well may please the court my name is nino for the opponent i'd like to touch on a couple of things the st is that there is no logical reason for shoving an inmate into a closet where there is no camera counsel did not provide an explanation for this for shoving him into the closet where there was no cameras the record just not show that the guards provided any explanation for doing this other than retaliatory intent and and it's difficult to think of a situation in which that with theoretically exist it's good it's a space where are shelves and they keep boxes and it's for storage and they don't have a camera there and so clearly there is no purpose the prison did not intend for this to be something that the prison guards could do without with any wou lying on his back with his hands handcuffed behind him without these reasons it's it's it's hard to imagine a situation where we could infer retaliatory and so under the willie factors on that issue summary judgment is clearly precluded the nd issue i'd like to talk about is judge harris's discussion about the distinction between direct direct evidence and indirect evidence and the role that the whitley factors play in this kind of analysis someone says a statement that someone makes is the closest thing to direct evidence of someone's state of mind that we can get so contrary to what the government states what the officer statements are the officer statements are actually more valuable as direct evidence than the statements from the inmates and this court has held that summary judgment is inappropriate when we have statements from the plaintiffs that indicate the state of mind of the officer so this isn't even this is an even lower bar to clear and we have a clear indication from the statements that officer jones made get him in there you don't messed up while saying the same ball hitting him at the same time and crocks brooks is clear regarding the distinction and the role that this kind of evidence play is praxis clear that both direct evidence and indirect evidence play a role but the will be factors are not exclusive there alternative ways of reaching inferences that clear from this court in brooks so in this case we have the direct evidence of the statements we have the shut down messed up and b i get him in there statements those are the direct evidence those lead to an inference rotten both are not necessarily required in this case because we have both it's an even stronger reason for why summary judgment is not appropriate in this case and i finally the last thing i'd like to  provocation you headbutted you kind of you know don't see stars as most people you know you hit it shakes and come up and this person is dangerous right even even what subdued these days regarding the isolation issue i i think that brings us back you want me to the purpose of the janitor's closet there's just there's no you know i juggle reason for using a closet that has shelves and tools and boxes and no camera in it to carry legitimate use of you know prison guard ready we're going to your other question about whether or not you know it that whether or not it is true that he he messed up that is absolutely possible but you know no one can say he best up he did mess up he had been an officer but it's about the intent of the officer ra making the statement and the fact that he was also his target he was also kicking him and beating him well he was saying the statements that matter and the context the way he was saying these things the things he was doing while he was saying them and the fact that he was not resisting at the time changes the eight of those statements play