magistrate judge committed serious procedural errors in this case most significantly ruling out a motion to withdraw consent over which he had no authority with a lever that error alone requires a re man and could obviate the need for this court to address and resolve the substantive errors in the decision in the records decision nd the district court shouldn't have granted summary judgment on the impoundment and excessive force claims because a jury could decide that the empowerment and the that and the unworn use of force  jurisdiction after right after this court's twenty one thousand decision and branch versus umph nor there's no question that that that that motion had to be decided by an article three district judge and not by my district judge elman defendant's principal counter arguments all conflict with branch in one way or another other main argument seems to be that we somehow we've the issue and branch sort of disposes of that argument from the get go it essentially recognizes that this  dismissal of those claims because the magistrate judge didn't have universal consent and so therefore could have dismissed the claims but reviewed by a district judge and what's notable about that is that mr branch didn't raise that jurisdictional argument at all even in his briefing on appeal  withdrawn then it would either come back up to the normal hill process or if this court chose to do so it could probably do a limited remand and retain jurisdiction over the substantive issues in the case is well i think the the defendant's other main counterargument seems to be that that sort of there is no need to remain because of this or the district judge will inevitably deny deny the motion again as we've been discussing i think that branch disposes of that argument it makes clear were to agree with your argue your so i guess i'd make a couple of points one i think our point on the recusal i think that that would also be potentially fair game for the district judge ruling on the motion to withdraw as well that might be fair game for a district didn't provide any reasoning didn't say whether he thought it was and finally didn't say whether he thought it was maryland didn't didn't sort of say whether he considered any of the substantive sort of considerations for recusal and i think all of those things sort of together certainly we've discussed in our in our briefing on appeal there were certainly grounds that seem quite a flexible to the set of circumstances that the magistrate judge either didn't consider and didn't say anything about or didn't consider and should have and that we think that have no further questions on the procedural issues i'd like to turn to the claim i think in the circumstances of this case the empowerment of ms brown's band was per se a reasonable under the th amendment unless they can let the federal defendant show the community caretaking exception made clear collectively and individually that a blanket policy sort of isn't on its own or justification for impounding pursuit of community care to the exception instead there has to be sort of circumstances that the purpose of the of of jumped immediately to impound in her vehicle that's around minute thirty one of the main video the video three said that he was in one in the van because she was under arrest and be there never asked her whether someone else  illegally in it by the time she was rusty it was daytime she was parked illegally parking lot of a national and state parisian area that's used by other visitors or hours hours at a time and there's there's no evidence in the record that her van would have been shortly before madonna placed under custody they were there someone else had in fact pulled up and began using the parking lot i think there might be a different justification in that it is parked illegally then there might be some more general source of law for the national park service to tow a vehicle that wasn't that park or illegally i think at the time that she was in the parking lot of the time that she was arrested it was already daytime and there's no evidence in the record that that her parking there was illegal or somehow improper time that the use of force for no force is necessary by late the th amendment and that's the right that we're saying is violated here and i think the defendants really want to focus on on two things you know the st one i'd say is they want to focus on the two or  what we know from that is that ms brown was greater leachman began as investigation because of a lot of camping which is an exceedingly minor regulatory violation the most serious crime that she was you know suspected of was p c one hundred and forty eight which this court case  in the van for twenty minutes without any incident and she didn't grab a weapon she told him again that she didn't have one and once you open the door she said she wasn't getting inside and he told her that the ground without any warning without telling of the she was on the list and without telling her that she wasn't  claim where the vehicle was parked in a spot it was posed for the season and both the impounding officer and the suspect herself said there was a risk of vandalism nor has either court ever recognised the claim under these circumstances for a routine  this is the basis for the motion this is the standard judge film and then said i grant your allusion this is minutes before the interaction in stark contrast on you are to forty ms brown is asking about a for overcoming boats or veterans and miranda both ranger toller and ms brown said that there was a risk of vandalism and ranger toler's statement that impounded not simply because policy but addition because of the risk of vandalism can be found if you are to five paragraph four this was an additional consideration it was not simply impounded due to policy although it would have allowed him as to the excessive force claim the entirely different categories of governmental interests specifically those cases dealt with intermediate significant intrusions however spray and baton in the case of young and taser with  terms of brian that's the opposite consideration here here are racial each when used with this court has already determined in donovan forrester to be the most minimal level of intrusion ristal and that matters it matters because the alternative was to allow ms brown to reach the driver's compartment of her car where she could either access a weapon or asses something that could be confused as a weapon and if that happened the situation has escalated would suffice for the clearly established product qualified immunity that's simply not so in martin itself on page one thousand and thirty six dollars this court said that jones is not binding on us it is axiomatic that if jones was not binding on this court in two thousand and eighteen it could not have been binding on ranger leachman twenty four team lastly as to the pat down it is absolutely clear that and nor has any case to overcome qualified immunity been raised minimum the federal alys are entitled to that qualified immunity on every one of the th amendment claims and certainly on the then claim to finalize on the issue of branch as we mentioned this was not a motion i like to clarify one point though that although branch itself spoke to jurisdiction it's the to the issue of magistrate jurisdiction never spoke to the idea of subject matter jurisdiction although the reply brief gunns lies on two cases one dealing with the bankruptcy court and one from twenty eight years ago in the th circuit what is clear is this court has never said that not a straight jurisdiction falls under subject matter jurisdiction and there is no reason to believe that we have to reach that binding  as a result because the appellant has not identified a case for any of the th or even then the claims and that this was not a motion we asked the court to affirm  it wasn't a written motion as it was a branch directed to the district court judge and when the comments were made they reference something that arose from the prior criminal case and her experiences with the new judge in the criminal case my point being here is that there was nothing about the argument that she presented if we're calling it that or are comments or inquiries that she made otherwise t purposes of considering forwarding this to the district court judge to make a determination so the point is i think to kind of bolster the it's a suit taken by the federal defendants what was done here at the tail end of the case management conference really did not equate something that would have been considered by the judge bad time as a motion to withdraw con t and then from a practical standpoint i think you would it would be a concerning situation for magistrate judges who have been given consent by both parties to hear the case entirely to have to essentially unplug full d stop whatever proceeding they're doing whenever some comments are made hinting on withdrawal and i think that's a concern i would have here for example of there's hearing on a motion or a pretrial  would be not unexpected especially for a pro se litigant the issue is whether or not those questions constitute a more d motion warranting referral to an article three judge and potentially delaying the inquiry about that doesn't constitute every motion that i think under branch would require a referral to an order of the judge that's ultimately my point i think it was perceived as a discussion it was categorized by the officers had no ability to perceive any type of warning there's no evidence in a record that they would have had an opportunity to do that and therefore they would have had an it is very damning she stated on the record she would like to withdraw consent to magistrate judge restriction she'd like to have it in europe today at a minimum it shows that judge omens response to that showed that any written motion would have been futile know clearly stated on the record that she wanted to withdraw and that and she stated her specific grounds for doing that this idea also that that a motion would be futile i think is it is again where as we discussed previously rice disposes of that i think in the course of the opinion the court actually made clear that mr branch's own grounds he i think he wanted to withdraw because he was unhappy with sort of the series of of rulings that the magistrate judges had given him and the court sort of said in the course of the opinion that that isn't on its own grounds for withdrawing know certainly out of sort of case law igniting that permission can be given the limited often to a specific judge it would certainly be open for a district judge to consider that my own as a possible motion as a possible reason for withdrawing consent and again we've raise other other potential bases for recusal other things that the district judge could also consider remain on i think the the other point i want to address to mr wilentz this point about accessing a weapon in the front seat