the view mr campbell of course is the appellant here today who actually they get whacked in the face by a police officer by the judges praised it is mr campbell's appeal from the trial court's order granting summary know if the police get the evidence in a way that's unlawful then the remedy suppression i think generally the rule is that a person being arrested if it's in a lot if it's a lawful arrest has to submit offers bad faith or provocative conduct what we have here according to mr campbell i mean this is the summary judgment standard in his affidavit what he says is that when he was told that the answers one of the few became sample among other things and i would agree with respect to some of the things it might not be relevant but one of the things was the officer said well we'll just take that from your black ass i think it was underwear that he was saying he was also talking p to get straight there that there are two different time frames that i see correct are you making a claim i made the answer is yes to my destructive are you making a claim to the actions taken to subdue him when he refused to hand over the stuff or are you making a claim that they attacked him after he was already handcuffed and totally said both there's evidence in the record that the the beating inflicted by detective brazil continued after mr kendall was handcuffed subdued and on the ground so you're saying they could not take action against him and because we just think that because it's me you're saying they couldn't take action against him to force him to turn over the stuff they couldn't attack to do it because it might have been a nicer sweeter way to go about it but also in addition once he was the doing down on the ground setters et certainly couldn't keep hitting him correct and that's why the question of resistance one of these any i'm having trouble and i have too much trouble would be a memorable day though because when you have five officers in a secure facility with someone who's not going anywhere you cannot have a weapon none of the officer say threatened him there's not one statement  any affidavit saying that that mr kimball was actually trying to strike at them or being combative as opposed to resistance when you have that situation it is constitutionally impermissible to punch a person in the in going in and they need to get this underwear and get the evidence from the hair and he's resisting that's one thing to say look once he's handcuffed and chained up and so forth you can't often and him upside the head it's another thing when he's resisting to be able to do what you have to do to get the underwear so i'm not trying to say you don't have it are you with regard to the search warrant one hundred three action there what is it about  fernandez's version that is when you're trying to get the underwear from him what is it about the officers conduct that's improper when he's resisting while trying to i'm sorry i'm not following your question entirely we're writing this into pieces but you have a claim with regard to fair use sarge mark you have a client potentially if in fact they had him subdued and then they decided to open and knock him cold well that's that right now we're talking about the part of the physical conduct or the physical activity that relates to getting underwear off of him when he's resisting and you can tell us yes there are five officers not going anyplace but they still have to get the underwear off and get whatever evidence they can find from the from the calling into pubic here where he has to be restrained he has to be can do all those things but they didn't do that here if they didn't go through the other less harmful methods detected brazil with with no threat from mr campbell beating continued after he was on the ground after he was subdued after the handcuffs were detected brazil struck him repeatedly with his fists and with his needs regardless of what one thinks about punch in the face which we would assert is constitutionally permissible under these circumstances and far more severe than than the situations in the cases that we've cited to the court particularly the lawn case mind their policy if i understand it correctly you don't need a search warrant to take guys underwear when you take him into custody i should think the combing for the checking it for bodily fluids of the victim ok anything wrong with that if that was the evidence i think that would be a different case if that were the evidence and you would need  i believe that's correct well only if they were blocking it for something like d n a tests on him would they need a search warrant is that right or or comparison the question here then i take it from your standpoint would be where is the evidence that they were taking it for any particular reason as opposed to just taking the right but the focus here has to be on whether or not summary judgment was appropriate whether the officers were entitled to qualified immunity under these circumstances assuming that what mr kendall said is true or not what the answer say is please the court minus against schmidt i mean here we have the city of eugene its police officers i want to just make two points i want to address what i think is the most problematic fact in the case in terms of the grant summary judgment on the excessive force case if you view the evidence in the light most favorable to mr campbell mr kimball states in his affidavit that he was punched after he was handcuffed which of course the officers dispute but we have to assume as true on appeal dealing the evidence month in the light most favorable to the plaintiff i believe that judge panners approach to this and i believe the approach that is is correct was to look at the totality of the circumstances and conclude that even if it were true that he was punched in the face after handcuffs were on him as difficult as it is to to defend that under the circumstances of this case a police officer would not know that that conduct was clearly unlawful for two reasons one is the fact that even under  the best of circumstances for mr campbell this was a scuffle involving a number of people and it's going to pan or pointed out you have to look at what the police officers did from their perspective at the time and secondly the undisputed evidence is that mr kimball suffered what turned out to be a relatively minor injury he suffered a bruise to the left eye socket scratched cornea and some information of his way because they certainly don't want to encourage police officers to think that way but the reality of this of the situation i believe what both this court in the u s supreme court has emphasized is it's easy for us in this courtroom to second guess what the officers did but we try as best as possible to give them some leeway within a realm of reasonableness to to actually use excessive force as long as they reasonably could have believed under the circumstances that the time that it that it was not and i believe that's what you have here well but but but can you in light of the law can you possibly believe that it's not somebody who is so did handcuffed lying there on the ground and you thought well you know a good kick then we won't have to fight him again later because the couple good kicks will straighten him around now i don't think that's permissible but i also don't claim i know is that even qualified qualified lee immune you know but i also don't think that's the record that's before you because i don't think it's fair to say given the undisputed evidence of his he's like it was read with the things that has hit me in the face more than one time and need me while cursing me even after i was handcuffed on the floor so he's handcuffed on the floor and then later on the injury he suffered and given the context of the scuffle i would say that he pulled a reasonable police officer on the scene would not necessarily know that that was clearly unlawful i think it means that he can a police officer when i'm completely subdued