recent case that actually came out of the sixth circuit on january third two thousand and nineteen it's not in the briefing but it reaffirms the summary judgment standard four thousand nine hundred eighty three excessive force claims it's called hundred three action the court asked her are a plaintiff has to allege improve with admissible evidence with particularly what each individual actor has done and that has been the prevailing standard in the sixth circuit for quite some time we cite numerous other cases in our briefing to support that but i think just one sentence out of that cave who case which i think is sort of foreshadows this case in a summary judgment context and this court recently stated in the case of case if plaintiffs hope to survive a motion for summary judgment they must provide evidence to support their allegations particularly in regards to the actions taken by each individual agency defendant so if there were any doubt as to the continued viability of that summary judgment standard i think that's just been reaffirmed a few hours hypothetically that these officers each wore masks so that they could not be identified and that that some that there were four officers involved and that they were all in gauged in hypothetically i'm making this up hypothetically actually beating a subdued prisoner but because they were wearing masks they could not be identified but it was apparent from their reports within the prison that they were there because they did say they were there would the fact that they couldn't be identified individually as to which one hypothetically had hit or  character or stepped on or whatever the particulars of the force were would that be a situation where you would make the same argument that because there isn't an identification that officer a did something an officer did something else that therefore the officer said the scape and the liability i think that that pattern you just described is is much more akin to the greer case which involved midnight ski mask raid shotguns held to the had refusal to disclose badge numbers patches over the badge numbers when they were asked for identification they said you can refer to me as being a member of this and steadfast refusal to provide any identification so i think greer addresses that and i think on the continuum of intentional concealment on the right and no concealment and we're all the way over on the left because i think this this plane this plane alleges that she was placed in a spin mass and that it obscured her condition so she did not know who was doing what she did not know she said to search term in the invasive fashion so why is that why are her allegations and i understand they're just allegations but why are they any different than the officers wearing ski mask i can give five specific references to evidence in the record why i think that it's not comparable first of all it's undisputed on the record before the court that this particular inmate was being combative disruptive unruly and spitting at the officers she was stopped for a o u i all think she blew a point three two with her child in the car it was obviously a very upsetting situation it was not an easy arrest and that necessitated her being transferred from the local bloomfield township jail to a what i call a higher level facility that  to the child was i believe taken in by the police officers and released to another parent during the arrest but the point of that is that if there's testimony in the record by the plaintiff herself indicating that she was being loud she was being on ruly and so on and so i think that go to the question whether the force was excessive not to the point that you were making to start out with that the plaintiff must allege what each individual has done i thought your focus was on there she has pointed out that officer a did a particular action that she calls for an officer be different so you mentioned three things that i don't see how they're going to answer my problem number one i think the summary judgment standard is very clear that in order for a plaintiff to survive summary judgment on this fact pattern the plaintiff must create a genuine issue of material fact as to what each individual actor has done and the only other exception that i'm aware of that is this line of cases like early one early two greer in been a which involved completely different fact patterns of attentional concealment now it's interesting because they think the district court here there's two fundamental errors in my opinion number one it did not apply this summary judgment standard i think we can all agree on that on the record before it it didn't try to engage in a particular assessment of each person's conduct and frankly it could based on the record then it turned to the intentional concealment cases in it said two things which i think are quite interesting first the court held that an intent to conceal is not dispositive that's contrary to all the cases that deal with intentional concealment like career like early one barely two and b'nai the critical factor in all of those cases as i read them was that we're not going to reward deputies for concealing their identity we're not going to immunize them so when the district court i think when it realized that there was no evidence in the record of intentional concealment and then in fact it issued a finding i'm page seven in the opinion the district court judge indicated that there's no evidence of bad fa so the district court concluded by way of finding based on the record that there was no intent to conceal and then the next step in the analysis was it said well i can solve this problem intent to conceal doesn't matter well i think it's the only thing that matters when you're going to apply an exception to the summary judgment standard so for me i think you have to put this case into one of two boxes you have a box of intentional concealed or you have all these cases that have officers are wearing ski masks they say i'm a member of team team eleven they stonewall in discovery they don't release police reports and then the other standard is where you don't allegation in this case that there was intentional concealment well it's interesting because yes or no from the plaintiff's perspective out now ok so the box number one you can throw up the window because it's got nothing to do with this case box number two unlike some of the cases including the very appropriate hypothetical that judge moore gave you we know exactly what officers were involved here with the exception of one officer who was misnamed and was dropped from the suv and no one's talking about him at all but the police reports them fence don't deny that they were the four officers that were involved right correct so we don't have any identity issues now there is case law from more than one place that talks about the duty to intervene the duty relative to intercede in wrongful contact by a brother officer and you're pushing the particularities point way beyond what the case law in this situation calls for i appreciate your perspective and i  think that all the cases we've cited like per show for example the plaintiff in purcell was able to give a very detailed account which made it pretty clear about which officer engaged in which particular use of excessive force i guess the example i would give is the real danger in lumping all the defendants together is a search a fourth amendment violation if you're part of a team that executes unlawfully executes a search warrant in a raid the the wrongful act the constitutional violation itself is perhaps crossing the threshold into the home at that time you've committed the wrong now the sixth circuit has made it very clear that that's not the same standard for excessive force excessive force has to be much more closely tied to an individual by its very nature if you're going to allege that a particular person of a team struck you have you have a burden to show with some specificity that it was one of five officers that struck you so i suppose that's the example individual hypothetically is forced to the ground forced to lie down with her head and cannot identify which one it is but it is very clear that one of the four struck her repeatedly hypothetically struck her repeatedly with a baton you're saying in that circumstance even though there's a duty of the other officers  s excessive force and even though the individual involved was forced to lie on the ground cannot see you're saying that there cannot be a case going forward under those circumstances because the individual cannot identify which one did the beating but everybody agrees that all four were there any one of the three could have stopped the you know i'm out of time question yeah i think here it's i don't necessarily disagree with your hypothetical but here the failure to intervene claim is not fleshed out in any way there's no evidence in the record that would support an inference or a conclusion that if one offered one of the four one of the five officers did this the other four had the means an opportunity to intervene or stop there's no evidence in the record to that effect we just don't have enough context and i state that the plaintiff didn't carry her burden in providing even the most minute amount of detail that would lead us to believe officer a was in the corner office or b was in the other corner office or c was hovering over her it least that type of a fact pattern would lend itself to a much more detailed failure to intervene analysis of why it's why i don't think that that's the facts before the court thank you individual officers or placed over plaintiffs in this case the fact is the say they have taken an action that has concealed their identity so that when they then go you have to tell us specifically what officer a b and c did each kick punch grope in this case it puts the plaintiff in an impossible situation looking at the testimony on the record in summed up in the judges of the district court judge opinion i think that's exactly the case here plaintiff identified these four individuals as being in a room this isn't a search case where you have people going on all throughout the house and are necessarily there at any given time we have four individuals in a room  taking the facts as the plaintiff has presented them as the nonmoving party we see an excessive force claim here through excessive groping both her chest genitalia slapping in punching and then they go hand is doing what i think the plaintiff has sufficiently identified the four individuals has shown that there's there's been excessive force and that the individuals the four individual officers that remain either were using the excessive force or had a duty to step in and stop the excessive force as they were in the room observing it i don't know if the panel has any questions for box in other words we know that there was no intentional concealment because the district court ruled there was no intentional concealed we have on the other hand cases where someone can see perfectly fine they're not intoxicated at all and they could say this officer did this this officer did that we don't have case law for a box for a middle box where the court has ruled there's no intentional concealment but has also presented no evidence differentiating what officer did what and so that is what we are creating here that there was no intent to conceal to the concerns about failure to intervene even on a failure to intervene claim there has to be some showing of individual liability because there still has to be a showing that that officer had the opportunity to observe what was happening and had the ability to intervene so to say that a failure to intervene claim can survive in the ether without some sort of personal involvement i don't think is correct is there evidence in the record this is summary judgment right  there evidence in the record that these for officers were in the room where the events were taking place yes there is in the sense that they're all listed in a police report and they all acknowledged though they may not remember the specific incident because it was years prior to their depositions if they were listed in the police report they were there when actually they say they don't remember  the police report which is generated by the police correct that is that these police officers were in the room yes sure and this is the room is what kind of a room it's a jail cell in with the plaintiff here would have the ability to stop any thing from happening or to remark upon that and deter their to mr bach about a significant beating multiple blows yes i think you're absolutely right but i don't think that's what we have in this case and i don't think the record supports being able