it please the court good morning your honor dennis will often for the city attorney representing officer massey a tucson city attorney i would like to recognize the skillful briefing of my colleagues  qualified immunity case your honors are well aware of the standard two prong standard there needs to have been a constitutional violation and it needs to be clearly established in law at the time that the events occurred neither of those have been met here this case is two and a half years old and the plaintiffs have never brought any case forward that actually makes clear that there was a that this would have been a violation for what  officer did can you tell me what level of specificity is required to meet that problem does it have to be a case that says i pathetically slamming a woman's face into a palm  is a violation of the constitution but if the next case is slamming the face into a pine tree do you have to have a pine tree case what is the level of specificity  what i understand a level of specificity specificity to be is you don't have to have clear proof all that the supreme court has said is you don't have to have clear precedent that's exactly on point but it has to be reasonably clear excuse me i would say more than reasonably clear to a reasonable officer that what he or she is doing is wrong and we do not have that in this case i understand your concern we do not have that in this case we have a situation where a woman is in the media and she's intoxicated she's antagonistic she's uncooperative she won't move away from the person she's with which means that and she won't give identification so the officers can't investigate anything of what they are suspecting moreover where they suspecting it's unclear to me  either possibly domestic violence your honor or underage drinking and how old was she i didn't even if you look at the pictures which i think are thirty nine the ones with the babies gashes on her head yes and she's your argument you're not looking at all you're using that against her that's true your honor but but that's right but the point is the officers don't know when they're investigating whether she's under age and that's one of the things they're looking for grounds for the detention and there's been no appeal right so now what is the officer do ease there's a it's a median of one or two sons busiest streets there's traffic going by both ways he's got to think about her he's got to think about safety the officers he's got to think about safety the public so what does he do well one of the reasonable things that he can do is and probably we argue the best thing he can do is take physical control of her and get her off that median of course but the cording to her evidence one of the things he does is show her face into the bar of the poetry that that's not getting her under control and getting off the media and that's something distinct so her evidence is he deliberately pushed me into the but what she does she talks about being pushed and were shoved into the palm tree by his body weight easy want to go for has her deposition at twenty eight lines th and twenty five it's not what i just want to make sure we're on the same page of this is not a shot of like i'm going to shove you into this tree he is trying to get handcuffs on her and he's pushing or forward and that's how she's ending up into the tree and her head is going between the tree and she's getting scratches on her face and her shoulders everything you're saying though may be true but it sounds like you're making the jury argument right now that that's the concern that i have the problem the problem with that your honor is if you go to the nd prong there's nothing in the law that says that what he did is wrong well i'm not sure about that there's the law says you can't have access you can't use excessive force and i mean maybe i'm viewing this way in particular circumstances well right well i think excessive force is defined differently in particular circumstances but it's clear you can't use excessive force and so the question here is when you're arresting  someone how much force is excessive and maybe i'm looking at this too simple but when when somebody ends up with a big gash on their forehead and on their arm it suggests that the force might have been excessive or at least enough that you can you know go to a jury she's at the palm tree we didn't put her at the palm tree and when he goes to hand cover that's where she ends up being is this palm tree it's not like and he's  he's interested in is handcuffing or and getting her under control but the thousands hundreds of thousands perhaps of hang tough things take place without ending up with this kind of injury well it's what it's where where she as leaning against the palm tree and she's standing next to him and she's non compliant and arguing with the officers not giving i d and she's on a median and that's they he has to make this split nd decision basically of what he's going to do and what he does is says i'm going to get you under control physically i'm going to i'm going to take you physically and get you handcuffed and i doubt it's minimal force it's body weight and handcuffs under the look the case and your honor you've the cheney case that i cited in supplemental authority there's there's no baton there's no tasers there's no these strikes there's no pepper spray there's no kicks there's no punches there's none of that why not try the case because how does the level of specificity get a stablished in the absence of trials there are obviously fact questions here you have one version she has one version why not try the case and let the jury decide under appropriate instructions because under the nd prong there's nothing that says that what he did was unconstitutional and i think judge nelson point out there's lots of case law on excessive force there is but there's none of them that are that specific to to this situation and i sort of disagree on that because i think i mean the principle and by the way i'm very sensitive to your arguments that i don't matter stand your honor but that's why we're here yeah but but but it seems to me that excessive force when you're handcuffing someone at least my understanding of it and again this i may be off base i mean i but my understand when when they complain about excessive force in handcuffs and usually what's required by the courts is to show some sort of medical attention necessary and that's how you distinguish between you know true just it's i'm sure that handcuffing someone is uncomfortable detaining someone is uncomfortable but when it reaches the level where you need medical attention that is to me where that line is where there's at least a body of law that makes it clearly established that that this at least arguably is excessive force now you may well win before a jury i mean i don't know all the details of how much she was resisting and things like that but but it seems to me that when there's medical attention required that's where the line is disabuse me of my notion that there was a the only medical attention that was required here your honor was eleven visit where she got some some topical and once there was nothing else that she did oh yeah but but i mean you've seen the pictures i mean i would also i would also point out your honor that under looked all the fact there's injury doesn't mean it's excessive force that's not that is not a proper logical analysis according to judge gould in that case ok course that's right now i'm not taking them and this comment out of your time it seems to me that this is the waste of the interlocutory appeal this would have it please the court good morning my name is damien gallagher and i'm here for ms mina the lee i'd like to start at the point that judge malloy noted that this case is coming down to whether it's a pine tree or a palm tree and that simply is not the law within the supreme court nor the circuit as it was clearly established in two thousand and sixteen as it is today that an officer may not employ nontrivial force against an individual who is not resisting arrest of nor possibly resisting arrest so how do we determine whether it's non trivial force is it i mean can we look to the injuries is that determinative or is it not determinative your honor in evaluating whether or not the force is true trivial or non trivial it of course is a reasonable reasonable miss inquiry under the  amendment but typically in the excessive force context it's evaluating whether or not that force was necessary and the degree of that force is necessary in effectuating the trust and here it was non trivial because officer  within his custody when he was handcuffing her and once he pinched his hands in the handcuffing that's when he retaliated against her by thrusting her shoving or whichever verb this court chooses to adopt chooses and threw her into a tree where this court has noted she was bleeding and had scrapes on her face and shoulders well what's how do how do you stablished the level of specificity and refer to my colleagues concurrence in the green case talking about the u s supreme court articulating that it can't be at a level of generality but it doesn't have to be directly on point how do you balance those things and so we can figure out whether or not there is qualified immunity your honor this court in austin linsky as well as the supreme court in andersen has noted that a law is clearly established when a reasonable officer would understand the contours of the alleged misconduct and would know that that violation that action would violate those contours and here we have defined this at a level of specificity that an officer may not employ nontr and that no case of this court directly addresses the use of that particular weapon we have held that an officer is not entitled to qualified immunity on the grounds that the law is not clearly established every time a novel method is used to inflict injury and  it in meredith whether it's a taser or whether it's handcuffing this court has focused on the degree and necessity of that force not the particular weapon and additionally this court mendoza that the very act in question does not have to be previously established again relying on the legal principles and the holdings from this court not the particular weapon force cases in which the injuries were of this sort yes your honor and in meredith the it was a tight handcuffing case and there the injuries were scratches on one's head on the wrist i believe  and it's almost similar to the ones in the case that bar although it does seem that the injuries that ms mena suffered were you know rather bloody and uncomfortable but it's also worth noting to stress that her injuries are not only physical but they're also emotion psychological damage as a result of this incident well but can we i mean is there any case law that suggests we can consider the emotional and psychological damages your honor and i don't believe within my knowledge of the circuit dressing that in on appeal inquiry into whether or not the th amendment right was violated has not focused on the resulting injury but rather the violation itself and whether or not the officers conduct violated the th amendment inquiry and this court has approached that with a balancing approach in miller clark county by identifying st the intrusion on to the th amendment right and balancing that against the government's important interest and here it is of course our position that when officer massey employed  push shove thrust of his meal into the tree that any government interest that they attempt to rely on under the gram factors whether it's the severity of the crime whether it's a concern for her safety always in favor of that she did not provide the i d but the law doesn't require physically does the the nature of the offense have any corresponding relation to this meaning if she if they had a reasonable suspicion that she had  drugs on or a weapon on or would that change the analysis here it's just failure to show id as you mentioned does that change the analysis here on the excessive force that could be used your honor it could  because it is a factor and it is a factor to be considered however this court in cases of misdemeanors obstruction of justice domestic violence and even and certainly in this case with failing to provide one's legal name has hardly warranted the need for force because the offenses are minor and because these offenses are not violent in the meredith case as i mentioned before your honor's that was they were investigating tax fraud i believe which this court classified as nonviolent and so yes your honor could be a factor but because here at most it is a misdemeanor but one we do believe that ms mena didn't violate this law an officer massey in his deposition admitted that he never asked her for her name he only asked for her i and therefore not even violating the law and so to the extent that officer massey used force that was not necessary this force was not it was non trivial and violated misdemeanors constitutional right and because this was clearly established in two thousand and sixteen as it is today we respectfully ask this court to affirm if the court does not have any further questions ok thank you very much i do have one further question and this is for the court room you're a law student that's correct your honor and where are you a law student i'm a rd y minutes on the clock please very quickly runner he mentioned gravely and marathe both bystander cases i just want to make clear gravely itself said there's a difference between a bystander and someone who is quote entered really involved in the volatile situation to which officers were responding meredith i'm with ya i agree with you on that of though again i guess i just as you the question she's charged with not showing her id that seems pretty low on the totem pole maybe not a bystander right but maybe one step above a bystander sure that but they're investigating possible domestic violence and under a will not you not not from her oh she's on the median with her with no i mean are they suggest oh yeah i see when they go when they go to it when they go to the median and need to get her off the median those are the crimes i would just very quickly  this court has decided where domestic violence is the volatile volatility of those situations is recognized and the great danger of them is recognized so we this is not just she didn't show id there were there were serious matters to be looked at i don't so mentioned just parker that parker only said in two thousand and eighteen that a shove would not be there was nothing to say it would be a constitutional violation clearly in two thousand and sixteen that's that's also the case so we're always back to the nd prong and that's where we think we went i will i will finish with simply saying i also want to compliment my opponent for his argument  think the evidence if you look at mena maine as testimony there is no case law that says there was constitutional violation here that would have put the officer on notice and we ask that you reverse