northern district of texas and remain the case for further there are two major issues in this case the first issue is a genuine dispute material fact as to whether mr hanks hence his constitutional rights were violated appellee office or randall rogers who use the defense of qualified immunity this case boils down to the issue of how police officer officer randall rogers approached case that the circumstances of this escalated only because the police officer and that he should have known that that was that any response to what a man i would pull out of such let's say you want to the bill is a very strong case on our side on the by actively or passively just sitting in the vehicle rolling the window up locking the door and the key factor that's distinguishable in that situation though is in this instance it was even more that mr hanks removed himself from the vehicle he was no longer a threat to flee as in mr ville could be determine that she was still in the vehicle she could have removed herself from the situation  the other case i believe that is looks that style injury is the peterson the city of fort worth which was the nice strike by the officer this court determined that there was a genuine issue of material fact as to whether from the perspective of a reasonable officer the need strike was objected lee unreasonable or objectively reasonable i also believe that looking the other circuits looking into the solomon b auburn hills police department case that is also a strong case on the fact that there was passive resistance on behalf of the appellant she actually removed herself was going to meet with the officers and discussed the situation yet was u traffic stop and not assisting a citizen in need whenever mistreats clearly indicated officer rogers that he was looking for a cell phone from the very beginning the frustration on mr hanks is part was he viewed this is a situation where the police come to assist just as they are to serve and protect whatever it became a situation where the frustration officer rogers viewed the frustration is hostility one ever there was maybe minor passive resistance on removing himself from the vehicle as well as complying but if and i know this court has the dash cam video in this in this court has ruled on numerous occasion when you have dash cam video you clearly watch it and determine whether or not there is any material fact based on right i wanted to ask a question about the video since you brought it up can we consider in a mass the other side this to the fact that appears that the officer made incorrect and that's the nice the best crazy phrasing of that statements to both the to but to your not to but three different groups of people to your client to the people and to his supervisor on the phone that he told a recollection of the events that was not consistent with what unfolded on the video to each of those three people is that something that the court can consider in this making its determination or is that not relevant to this determination i would believe it is relevant to the determination the owners because you're looking at the totality of the circumstances from the moment of the traffic stop up until the point in fact without still he continued once mr hanks was in the ambulance and then which you refer to your hon phone calls to the supervisor as well as the statements the empties whenever they arrive now i will say that the video can be very difficult to hear at times where you can hear saying that he said certain curse words and they did certain things at certain times that are not on the video prior to that point you know to just your i know that in the different things that the gentleman did that i watched repeatedly and they're not there it can i consider that he made statements after the fact or those are relevant and i only need to and i'm only allowed to look at the statements up to the point i believe the relevant because your it goes to the mindset of how he approached the situation how he viewed hague's the one statement that stands out to me and is clear in the dash cam video is the instance of the use the swear words by mr hanks which are not present regarding what officer rogers tells the unities as well as the supervisors as well as the statement that he has his hands in his pockets throughout the traffic stop i believe the dash cam video is clear that he does not have a he has if anything  head as well as in the movement of behind his back i'm can kind of custody that he was in is it your or just the other side this to you is it your understanding that it's some sort of temporary custody so that the officer can write a ticket with being harmed or is it your understanding that he was under some sort of other detention while he was going to search the car that sort of thing or that while he was going to read or was he under a i believe that statement of the other side is that he was not under arrest any point and that's what's unclear because we have no answers whatever mr hanks asked for what the situation is of be notified that he's under arrest for the minor traffic ticket of not having insurance my new owner that he had less than a minute in ten seconds to locate that insurance if you get three tickets there was there was something about his going to  class b misdemeanor out of texas for the driving without a valid insurance because he was unable to locate the insurance if he never mind doesn't matter this point the hat box oh no i'm just a little confused so are you saying that we two citations or three there were two citations that i'm aware of parker the the situation of under arrest or whether he felt that he was under arrest there was never a clear  answer to what whether he was under arrest it appeared from the video the dash cam video you can surmise that he was potentially under arrest and was going to be booked and once he was released from the hospital once the paramedics determine that it was he needed to go to the hospital however then the story sort of changes again to where he says that well it's discussed with the supervisor that he's going to release him from the scene and he's released the paramedics in this free to go so he's never actually to jail but it is unclear whether or not he was arrested because we do have a search of the vehicle that appears on the dash cam video at some point as he searches through the vehicle while mr hanks is in cuffs in the back seat of the police let me ask you if you're saying your client's rights were out there at the scene did he have the right if he thought that he was being arrested or otherwise dealt with in an unfair did he have the right to refuse to comply with the officers command you know i believe he had the right to be made aware of why he was being a rest until he was made aware he could refuse to comply with commands to put his hands in a certain place to turn around whatever i believe that is what the video shows is the passive resistance so i'm asked resistance and tell me what the facts are i'm asking what the law is does he have the right if he thinks he should not get down on his knees in the officers telling him to do so does he have the right not to go down on his knees in that situation you i believe he does not do what you say the complete sentence because i'm not sure which the not applies to it he he has the responsibility and under the law to obey the officer's command reasonable commands in four times we don't need to be to pacific but multiple times multiple times and it is that strikes the first time there's a dispute on whether or not he actually heard the first request or second request actually get down on his knees since he was already in a position  dragging someone out would be peterson be the city of fort worth which involved in the strike i believe it's quite similar to this situation where there was instead of the me an officer a to rogers used his appears to be forearm or arm to take him down in what is called the half spear move i would also argue that the case of solomon b auburn hills the sixth circuit case is an instance of some sort of level of force in the same manner of trying to take someone down by their arms or their upper body whatever they are at best passively resisting the commands and wondering what the situation is and is trying to determine if they're under arrest and why and what for and i just want to be clear you answered a series of questions from judge southwick but you weren't conceding or agreeing that he ever finally refused to comply with any command given by the office where you absolutely never know your honor we are no conceding that whatsoever in fact i think the video shows a complete opposite to where he complies with every single command throughout the situation whether it is on the first instance or the fourth interest he ends up complying with every single but i want five or six commands or orders given a series of commands or on certain situations yes there yet there was a series all i know one more statement or command from the officer to get on your knees might have been enough to have him get on his knees except to get the spear before then it absolutely correct your honor there is no point in this instance that i'm arguing that he outright refused to do any action it comes down to the fact of excessive unreasonable force through negotiation or request to mr hanks were working they were being successful what officer rogers wanted to do which was a visual aid eventually detain him however and i think you said it best yourself your honor that one more question one more question sorry on whatever rights he may have had in terms of questions and all that do you agree or not there is no reasonable whether or not i'm under way i believe it is totally reasonable and under the law to ask why he's being arrested and what he's being arrested for expression in the situation whenever mr hanks views this situation as officer here to help him locate his phone he has done nothing wrong he was not under the influence of alcohol drugs no weapons found in the vehicle no physical or threatening manner and that that attitude if there was a frustration was viewed by a fraud as hostility which led to the aspect of an arrest that mr hague should have been or had the right to know why he was being arrested and it was a simple question that he asked during the process of the incident and running with it i'll reserve the rest of my may please the court my name is david craft and i represent officer randall rogers in this case six excessive force case it's been by mr marcus and if the court will indulge me i may try to answer a few of the questions that were posed during those encounters argument first of all as to the issue of the potentially inconsistent statements by my client we don't believe that it's material fact issue as to whether or not he made inconsistent statements first of all ok you're not saying he didn't make inconsistent statements i'm not saying he did because it's very difficult with the road noise you can see that mr hanks is very frustrated in the car his head is moving around his he's he's talking almost with his hands and it's very difficult to hear now one thing that's interesting in this case is that the officer rogers this appears to be a normal traffic stop and then he's talking with him he can't find his insurance an officer or rather starts walking back to his car and then he just turns around and it is something clicked in the officer's mind but i don't know that that's all that important for this analysis because what we believe that the court should focus on is the objective reasonable notice of the officer's actions that reasonable for an officer to make someone who's standing at the back of their car with their hands up to get on their knees is that objective when they're complied in a series of even if it was slow compliance they complied in the series of things that judge graves and opposing counsel discussed is it be reasonable to make that person get on their knees can i can the officer make me get on my knees at the traffic stop when he's giving me a ticket every single is that is any time is that the all i'm asking seriously what is a lot of area i don't know if it's every single time your honor but if you officer objective lee believes that there's some type of threat being posed by a suspect then i think he can and when mr objective really believed that the suspect was posing a threat when the person is standing at the back of the car with his hands up like this top of the officer objective we believe that he the gentleman was a threat why can't he just do the ticket right the affidavit but one of the things that's interesting is a soon as mr hanks gets out of the car the first thing he does is he pushes up his sleeves now you know officer i mean in mr hanks affidavit he talks about how it was a chilly night that's why he only rolled his window down a few inches when he's talking to officer rogers so i'm not sure why he pulled up his sleeves but it doesn't matter it's we have to look at this from the perspective of a reasonable officer and to a lot of people that looks like maybe someone is wanting to fight the next thing that mister hanks does if he sticks his right hand into his front pocket and that would give any officer i think reasonable officer concern that maybe there's some type of weapon in that pocket now he does ask him to remove his hands so that didn't do we have to we credit that statement if the video did not show something then i think that we could look to the to the facts in the light most favorable to the point if but in this video in this case i believe that soon as he rolls up his sleeves you can see him put his hand into his right pocket which is the side facing the camera so it's i think it is that he asked him to remove his hands from his pocket and mr hanks does remove his hand from his pocket but then he goes right back at the hook systems in the pocket now if someone is trying to draw a weapon whether it's a knife or gun having the hands around the waist is dangerous to an officer the safest thing would be to have the hands up at his head to have if he does know they're out of line the officer say at that point danger is much less if a suspect is on their knees and has their hands on their head and that was what was asked of mr hanks because hands on the head means that it's farther from from drawing anything  type of weapon out of pants or waistband and being on the knees you don't have to worry about a roundhouse kick you don't have to worry about a punch would be much less because there's no leg drive you also one or two thirtieth's of a second the video is shot in thirty frames per second and right around the twenty forty one thirteen mark of the video mr hanks is standing up against the car he has already removed his hands from his head and put him back in his waistband officer rogers has asked him to go to his knees four or five times mr hanks makes a step with his left foot it's a very subtle but i used a very low budget method to test this and i just put a sticky mark or sticky note the corner of a sticky note on the little white reflector on the back of mr hanks is left shoot and if you pause the video and go through it you can see that he makes a step to his left where is on the video it's right there  the twenty forty one thirteen mark and you can actually see mr hank almost continues with that step it turns out that the step is not the doesn't appear that he was coming around with a round house kick or coming around with  torso and i know there's been some i think it's just argument that he used his elbow but i think in the video you can you can see the elbows out and so what officer rogers does is he pushes him down into the car  biggest push to the car i mean abs are down when we're examining technique when we're examining the reasonableness of the officer's actions i think that the officer should try to use the least amount of force necessary to gain control of the situation could a person could see that it seemed that the officer was ethical aiding with it every step like in the you know in the news in the sandra billing and case of why is this not that kind of case where the officers as actually escalating the dispute rather than defusing the dispute could or could have a reasonable person watch this video and see that that way well i think that the sandra plans case what little i know  that there didn't appear to be a threat really to the officer safety i think she was smoking a cigarette and he wanted the cigarette put out then and he has collated i think we have to be really careful in the safety of these beautiful chambers  a very difficult time of not trying to minimize or actually that i'm asking could a person see this as the officer escalating the the situation rather than diffusing or protecting the situation i think a person could see it that way but i think that under the test qualified immunity i think that you know the burden on mr hanks is to show that no reasonable officer could have done what officer rogers did i think officer safety really is important you know and particularly take i'm going to i guess i'm going to go back in connection with that i'm going to go back to his order the mr hanks get out of the car what was the basis for that what was the reasoning behind that because what we have at this point is a traffic stop where he was going twenty miles an hour speed limit his explanation is that place myself in the car i'm hurt if he drives back he's looking for it seems plausible and there's no indication the officer bleed anything to the contrary so that's the reason it's driving slow so i got him for driving slow and now he can't find any proof of insurance so i get to violation order to get out in the end i think this comes down to officer discretion if there's anything that an officer sees or considers dangerous a car is a is a more dangerous place actually to have a suspect in because there's many places or under treated rightfully discriminatorily he thinks that at the time as it's unfolding because he says that to the officer in the car and says you did this to me because of that so that could also be a basis for the person to get i'm not saying he was being treated right please don't misunderstand the question right and that also a basis why he could have been animated it is a basis but again we're talking about officer safety and we have many places that a gun could be concealed once a suspect is removed from the car you really have areas that are hidden such as waistband areas and pockets tend to be the most dangerous places where suspects might hold a gun or have a weapon so in a car it is dangerous car one point i think that an officer to talk about with a flashlight when he's not in the car after the after the person is in the he's in the back of handcuffs and the ops are goes and starts rummaging through the car there was at what point where he's looking for some medicine perhaps for the blood pressure or something but otherwise that he's also rummaging in another time i'm wondering are you allowed to just go rummage through people's cars when they're in that is that was that is ever made that's irrelevant to this case i don't know that it affects the use of force which is that's the only thing we're here on is that excessive force we're not arrest but he wasn't being arrested and that's your life you know i it's very difficult i don't think that the officer made the decision out there from a legal standpoint i don't think he has time to say this is a terry stop or this is an arrest he he perceived the what he saw was a threat and he acted i think he had a legitimate but i think he had a legitimate basis to arrest him for the misdemeanors for the traffic traffic thank you can i believe so but certainly sir i believe and i i also believe that he had the authority to arrest him for interference with a police officer under section thirty eight fifteen of the penal code or refusing to comply with the police officers lawful order under section five forty two point five zero one of the texas transportation code so there was reasons to rest i don't know that officer rogers ever got there i mean he says that he perceived a threat i believe that a reasonable officer could see that there was a threat and you know he act and then we have the situation with mr hanks needing medical treatment and he took care of that you know the key i think in this case is not only that we're looking at officer safety but the injuries here are not severe many of the cases where this court denies qualified immunity we have broken arms dislocated elbows the debil case that they cite she required multiple surgeries also in that case the suspect there did not pose a threat i don't think there was a video and so the factual disputes were alive and well says any force found to be objective when reasonable enough theory exceeds the de minimus threshold and then it says there's a back question about the degree of injury i just reading forbade him from the opinion it is an unpublished case but it's a very recent  suspect was slammed her face was slammed into a vehicle after after the key is after she was arrested handcuffed and compliant this force in this case was not gratuitous whatsoever i mean there was no step with that movement looking at the totality of the circumstances and the threat that a reasonable officer could could perceive that the injury was the lowest level of force that officer no and and we also let me ever say that he saw this foot movement and that's why he rushed i believe he says that in his affidavit he had many chances to say that's what caused him since that's the excessive force  posturing posing a threat and you know try and attempt to gain control of this potentially dangerous situation i made contact with the upper part of hands back with my life was so that's from officer rogers affidavit and i think it's difficult to i mean looking back on something it's difficult to exactly perceive exactly why you did something this is these these are tense and under certain circumstances and back it's difficult to say why you did something well and i and i mean exactly what ought to be happening in the moment this is what i need to do based on the circumstance but i think he reacted and we have an expert and with him and the expert  testimony that this was reasonable and he went through how this is very low on the use of force continuum and so the decision was made was very good but officers do have to make split second decisions and  who's looking for insurance in the glove compartment he decides to abort that sort and have him get out of the car because now you tell me his fear that he may get to a weapon in the car law let alone from the officer making split second decisions in the field it's precisely for such such situations when the existence of a constitutional violation is not beyond debate the qualified immunity provides a defense with air force admit to you judge judge custis eloquent words why is this not a case where even if we were to find a constitutional violation we would none of the list find on the other prong that an officer would know necessarily that every reasonable officer would know that this was a violation that even if we were to go ahead and find wrong one and say there's a violation why isn't this the case that's in the gray area that the officer would be on was aware of it if he wasn't should have known he had a prior incident of excessive force in the eyes of the grand prix police department roughly seven months prior to this incident with mr hantz as a result of that incident seven months prior to mr hanks is incident he went through retraining on issues of force and use of force we are now fast forward to the time in february two thousand and thirteen with mr hanks and it appears that he had not learned a lesson or he did what the grand prix police department states in their reasoning for suspending him is that he use objective in an reasonable force or excessive enough objective leean reasonable force record between three fifty record on appeal between briefly three forty to four hundred is the grand prix police department findings or i'd like to dress the situation of the topic of de minimis injur this court has found on other occasions as well that injuries such as the busted lip the injuries to the nose the bruised ribs as well as the aggravation of high blood pressure it is not a de minimus injury this court in go chandler stated that they were versed the dismissal of the plaintiff's excessive force claim because they it became a tactician now in that situation the plaintiffs injuries included bruising in swelling which this court said were minor but they were not diminished enough to warrant summary dismissal and that comes to the issue of there is genuine fact issues throughout this throughout the video you throughout the statements the statements of any fear that officer roger sensed in the movement of a heel i don't believe should be considered because that is nowhere in the record on appeal and no and has never been made by officer randall rogers as a reason for why this force was used and it is important to go back to the situation of the escalation of the situation by officer rogers this was a minor traffic tickets that were settled for four hundred fifteen dollars it escalated from a situation not finding insurance to being removed from a vehicle and then struck with an elbow spear whether or not it had to do with the fact that mr hanks is an african american or whether or not it overreacting for whatever reason due to his size or what have you not but the facts show that there is no threatening movements made by mr hanks throughout the dash cam video which is certainly in the record and furthermore in i could be blair this court has said that the amount of injury required prevail in the excessive force action depends on the context in which the injury occurs again going back to whether or not is a diminished miss injury or not and it centers around a fact issue that at this summary judgment at the truck district court level must be viewed in favor of the nonmoving here mr han the issues in this case and what it centers around is that we have a circumstance of where is a minor often said he's pulled over for he does not attempt to flee he does not actively resist in fact to me goshen he is doing everything that is requested of him by the officer and the force was used excessively none reasonably without any need whatsoever and if there are no further questions i have one and it may not be where they're asking but but if the case would go back to the district court in there that trial on the issue of the office conduct in this case your honor i would argue that they would be admissible because of the case from this court on expert's opinion they have an expert in mr quinn that has said that it was not however in the eyes of the chief of police of the city of grand prairie texas it was objected lee and reasonable and therefore in our opinion would be admissible in the district court  to for lack of a better word counteract but his expert that he has that says it was not excessive with your report that says it the police department chief said it a brief recess thank you