arrested him using excessive force the real issue in the case is whether one has a clearly established right to be free from being thrown on his face and head when he puts his hands up in the air has his hands down by side and then gauges in the very usual maneuver of turning around placing his hands on his car waiting to be cuffed but instead of being cuffed the arresting officer in this case mr halleck approaches him grabs his hands and instead of cuffing him he throws him on his hands and face on his head and face is there is a noted that the officer had reason to believe that mr buster might have had a knife in his car on his person so when the officer was dispatched he learned from the dispatcher report through the radio traffic that mr vester perhaps had a knife in the bar that was a report there was some report that i was there to report  they perhaps had one or report wars where they did have one or the report was that the barkeep and hater nebraska had retrieved a knife from him while he was in the bar and we will admit that there was also he's intoxicated i don't think that that's disputed he's under the influence and so his reactions are delayed he's not able to appreciate these commands but eventually he does step out of the vehicle and once he gets out of the vehicle  having one in his pants may be a fair point however i my memory of the video is that he's wearing basketball shorts that are baggy i'm not sure where a knife would be held in there it's much like other cases in the they were supposed to go down the road he complied in the sense that he did get out of the car after five after five requests after five requests over the course of maybe ten to fifteen seconds and then three more requests that he get down  and he doesn't get down instead he puts his hands on the vehicle the officer approaches him it is so close to mr bester that he can grab mr best hanging and it's at that point where mr vester maintains that the force that was used was simply not necessary because if we're getting to the point where the officers able to grab the suspects hands and say give me your hands which he does and the hands are behind his back at that point you cuff the suspect you don't throw him on his face and  best right hand then goes behind his back and i do think that there is the left hand going behind as well and that's when mr halleck uses the armor technique and throws him on the ground when you look at the video i think it just the video itself belies the idea that he couldn't have been cuffed in that circumstance at that time and because there's no evidence that he couldn't have been kept at that time i would submit that the force that was used was just not necessary it was gratuitous the district court found seems to have found that this right is not clearly established and i say seems to have found because in the order halfway into it there seems to be a finding that it's not clearly established but then at the end of the opinion there's some statement that it may be established well if it may be clearly established then the officer shouldn't have received summary judgment in any event there may not be a case directly on point here but mr vester summits that the doesn't need to be because it's just so obvious when you watch the video again when you're your hands around the car and submit that you're not a threat to the officer no verbal threats were made when the hands around the car there's no indication that you have a knife in your hand you don't have access to a knife because your hands are on the car you're not attempting to run away you're not yelling profanities making verbal threats all the other sorts of things that many cases describe  think that's the thrust of why he did not get out of the car immediately and why he did not get on his knees immediately he was in talking to a case that says that in those circumstances we're asking someone who respect to the intoxication issue and not paying attention of the commands that suggest that a jury could find that because the arrest he was intoxicated that's actually a mitigating factor that the similar case where the arrestee is out in the woods somewhere he's just in a bathrobe of burglary is reported and he by all accounts was intoxicated there's burbage in that opinion that the jury could find the fact that he's intoxicated to mitigate the threat to that case involved the potential of a weapon i don't remember there being discussion about a weapon in that case a but certainly there was discussion about violent crime because there was a report have a constitutional right to have the resting officer adopt or used the least amount of force possible then the handcuffs behind the hand rather than the arm bar and i watch this video several times my colleagues have and it's a for those of us who are physically short and the people who are tall can do these things i think we all have our clint eastwood moments when we want to do  officer use a lesser degree of force then that might have been possible that a lesser degree of force that might have been equally effective without the consequential physical damage to the arrestee i think the arrestee has a constitutional right to have no more force than necessary under the circumstances or it's much better stated maybe in a couple of hours i could've come up with there and in this case there was more force use than what was necessary and the hands go up and the hands go to the side and the hands go on the car and we're waiting to become after it's also apparent that there's no knife and this idea that the officer thinks that he has to use the arm bar technique because there may have been a knife is just i'll submit ridiculous because there's no knife there in his hands there certainly is no knife when the officer approaches mr bester and there is no knife when the officer take amplify them because i think they're important and these cases these cases are decided on particular facts and i think these are three very important  great dispute with respect to the facts the facts are that my client deputy helike had information that mr vester had been in the one hundred one bar that mr vester had threatened people with a knife that the knife had been taken away from him or at least removed from his possession and that he had gone back outside in the both cases that the plaintiff has relied on as this circuit's precedent to district court cases the garcia case that was the young teenager who was out on a curfew violation involved no weapon the stockton case which is the other case that mr munder will mention involve the fella that probably was in his pajamas and slippers outside and no report of a weapon on the other hand the smith case and the roberts case the two cases that judge gerard found that were the most similar to this case in this circuit were both weapons cases in the smith case the claim was that smith had a rifle he didn't have it on him when the police officers encountered him but the claim was that he had been threatening domesticity with a rifle in the roberts case robert's family indicated that he had a knife when these cases include a fact that is includes a weapon the dire consequences to the officer for getting it wrong or substantially increased the risk of harm to the public and this but this is different and unique from many of the cases how it is alone the judge refers to the loan officer approaching the car but it's officer and that's sort of unique in these kinds of cases and the courts have discussed the difference in sizes between the comparable sizes between the suspect and the responding officer but more importantly i think here is a fact that we have a loan officer who is approaching howard alone and that fact makes this case somewhat unique and the risk alec makes a mistake his peril is increased if the district court finds that there was no constitutional violation or did it find that it wasn't clearly established under the circumstances district court found that it was not clearly established under these circumstances the judge utilized the and cited the formula or at least the analysis that  judge riley used in robertson smith and then the smith versus city of minneapolis case that cited in in the brief and in the judge charge decision u the third and final factor i want to mention is that the noncompliance by the suspect when halak orders him to get on the ground means not that he is simply standing there with his hands out or on the car non compliant lay but rather that he is now standing in front of an open car door where the doff the officer could apprehend that there's a knife located in the car when vester does not get on the ground he is between the deputy and the open car door though the order to get out of the car which vester alternately complies with makes his possibility of a scape less likely the order to get on the ground makes the chance of his getting a weapon less likely this is different than simply noncompliance making  making an officer's job more difficult or non compliant lose his noncompliance to keep the danger and high level you agree from looking at the video that it was pretty obvious that he was intoxicated there are some plum thing was clearly wrong that's kind of obvious right judge i agree with that but i don't know that i agree that it's clearly obviously he's obviously as intoxicated there's not really an opportunity to see him stagger i find at a minimum he was like a deer in headlights and he my response would be that he was behaving oddly very oddly he's not responding he's not  speaking he's not doing what the officer says and i agree with you on the noncompliance but it is a little troubling because he he turns toward the car and takes sort of a traditionally submissive position by putting his hands right and then once he puts his hands down there's no further command of you know continued you don't do that get down or anything like that it's sort of a submissive position and the officer approaches and that i don't recall both hands coming behind the back i recall an immediate grab of the of the right on arm and the arm bar and boy he goes down like a ton of bricks that's how i recall  your own writing i would think that his several occasions of noncompliance i think his manner is ot as opposed to being obviously drunk there's no c doesn't speak  possibly exist even in his noncompliance he doesn't make any active you know resistance or anything that is threatening right i think this is more of a passive resistance kind of case and  reason i think that the officers in my opinion the officers response is actually objective lee reasonable are the three factors that i mentioned when i began t is that this is different there is weapons and i think this circuit cases would show for example  case just decided this year mr ellery was walking away which was not compliant but he wasn't he was no longer being aggressive at the time of the of that and that was not an arm but bar takedown but a spin takedown and then an arm bar used to be to cuff him but i think those three factors make this case one where it was this court recently which involves no weapon and no one aggressively responding to the officer it's just a non compliance situation and in that case as i read it the decision is based on it being objective lee reasonable for the officer to do the spin takedown in that case and then an arm bar handcuffing procedure that was followed see here finally in the court is mentioned you know the many of the cases as you read the deposition testimony being summarized by the the court  the officer of you're going to need stitches for that or something like that and maybe some comment to the fellow officer when the officer or another officer finally arrives but  that's not because ours your honor so this court has detected some of those situations in its cases where the subsequent handling of the matter indicates that there was some sort of conspiracy between the way that the officers handled the incident afterwards as far as reporting and detected some sort of bad intent the test is as you reported it though and under this test are did that test  deputy helic certainly behaved reasonably under the circumstances and this court has cautioned obviously against second guessing the second decisions that need to be made by an officer in a situation like deputy heloc was in that day already forgotten and then as soon as they did a post or a search of the car was any second knife ever found no second knife was found the first knife was retrieved from the bartender well thank you again the report was that he was going to go and find one but that was well the  officer didn't know that that was a false state the report was that he went out to his car to get another knife or he went outside to get another knife or a witness said that that's not in case i did go back and look i i didn't see any report about a weapon being relayed to the officers there but i did one who worked for about one of his or a weapon being relayed to the officers in the stockton case i don't see anything in the arrestee is intoxicated may very well be considered a factor that mitigates immediate threat perceived by the reasonable officer on the scene that's the language from stockton  others perhaps and so i think if anything it's a factual question it's under these circumstances under this particular set of circumstances would intoxication mitigate the threat or would aggravate the threat that's question for the fact finder not to be resolved it will involve reasonably objective officers entitle to assume the worst scenario but the worst case scenario could go either way  as i understand deputy hallux argument that mr vester had to get to the ground so that the threat of the weapon or access to the weapon was mitigated to every extent possible to protect deputy palak safety and that may be true when he's on the ground but again when the hands are on the car and there halleck is right behind him the threat is similarly mitigated thank you for all the cases submitted we will take it under consideration