various stages of the proceedings and i'd like to focus initially on the summary judgment order because the standard of review is the noble and i'd like to start with the excessive force claim by dealing with respect would you move the microphones up a little bit so i can hear you better i'm sorry on i'd like to start with the excessive force claim for dealing with respect to the handcuffing incident i think the court below as well as defense counsel have analyzed the excessive force with respect to handcuffing incorrectly the fourth amendment says nothing about force it says nothing about excessive force and it says nothing about injury the standard is reasonable in this and the standard is objective reason on this and so is there any evidence that you if i look at this particular record and i look at what the arguments are and i will read the precedent in those arguments about handcuffing it seems to me that one can suggest that handcuffing his excessive force in some instance so your argument has some moderate amount of success but the next thing i say so what is the standard i use well i think i have to have a standard and i'm hoping you're going to say what the standard is because it seems to me that that's pretty important seems to me that if i'm going to look at a standard on excessive force i would look at what i think with respect to handcuffing there's two things you look at number one were the officers aware that he needed an accommodation where they aware they had a problem with his arrest is there is there a case that suggests that i've read i read what your opponent has given me and what your opponent has given me is all the cases which suggest that where the person who was handcuffed never suffered injury any injury at all there's no excessive force and that standard is incorrect you know i understand but there are cases that say that initially and for me so how do i get around those cases that's what i'm asking because those cases are no longer correct law so what is the correct law the correct law is if the officers are landing page should i look at you should look at meredith versus erath well remarriages really doesn't give me anything i mean i'm trying to get you to lead me supposing that i prompt you and say it's graham how does your particular situation factor in with the gra factors because the how does it you know what the graham factors are well there are a lot of different grand factors according to well that grandma outlined didn't they in gra v connor forty nine us three eighty six how line three factors which i ought to look at you want to look at the crime that's involved the seriousness of the crime ok here we have a marijuana grow a drug crime or a potential drug crime if you will which in a marijuana grow in a drug crime often there are weapons involved it's a serious type of situation police are entering into this tough situation so it would seem to me if we're looking at the severity of the crime the police get a factor but  don't think that applies to handcuffing case your honor if just a minute where does it say it doesn't appear to hand it doesn't apply to a hand have case b because if i look at only the handcuffing cases i'm frankly looking at what counsel is given to me which is he was never injured so there's nothing your honor but i say i respectfully disagree you can let him have the case there's a l don castellon cases alexander versus city of los angeles well but i don't think those two i mean be fair with you i look to every place to find a case that i could rely on to help you and when i looked at determining whether reasonable force was used graham says exactly the factors i'm supposed to apply otherwise i'm left with cases that counsel has given me which say well there's no evidence he was ever injured so therefore he gets nothing and i got no case to suggest they're wrong except graham which says apply these fact know i i believe the correct standard is if a person notifies the police that they need an accommodation and the police are aware that they have an injury or the police are aware that the handcuffs are too tight or they complain that the handcuffs are too tight and under those circumstances is subjectively unreasonable not to and what for the case should i look at to get that the cases that i decided to use those are the two the  that e g meredith versus erath case the law in versus county riverside and i should look at those cases and i'm going to find the standard you've now articulated i believe so ok and i'm not going to ask any more questions about that because i don't agree with you i don't believe those cases articulate that in fact i am worried that unless you provide on a gram gram factors case you lose because every case that i read that has to do with handcuffing even though handcuffing can be excessive force every case where there was no injury you lost but the reason that injuries are considered is because if you don't consider injury at all and you don't consider the fact that somebody asked for an accommodation a person could claim excessive force every time they were handcuffed and there's no way to determine whether or not the force used was an reasonable if you don't have an injury but that's different than the case we have here because here we have a person who the police officers are already recognized has a wrist injury in fact in the first affidavit submitted by  detective akins he acknowledges that he has chronic right wrist pain he tells the officers before they handcuffed him that he has wrist and shoulder pain and then after he's handcuffed he tells the officers that he needs an accommodation the handcuffs are too tight and they keep him in handcuffs for forty five minutes i hate to interrupt you so are you suggesting that the original handcuffing was reasonable but after they heard this information they should have taken him off the detainee that controls it if the rest of the change isn't saying anything and just complains later that the handcuffs were too tight then i would agree that's not an excessive force case but once the police know that there's an injury involved and once the police know that the handcuffs are too tight and he's complaining about pain do not adjust the handcuffs or to not take any action whatsoever is objectively an reasonable and that's the basis for that claim you have either you want to move to because you've kind of taken the overtime on that yes i'm sorry your honor the failure to knock and announce there are two problems with the court granting summary judgment with the ferry the not going announce one is there is a material question of fact of whether or not the police knocked and announced but there's also a question of fact as to whether or not the offices in the back entered the back yard before the officers entered the home well again i mean i'm hating th come in time for my good colleagues and they can cut in half that i looked at your knock and announce claim and while i understand officers are generally required to knock and announce they're not required to do so if  dangerous or futile or would inhibit the effective investigation of the crime allowing destruction of the evidence that's from richard versus wisconsin which is again the united states supreme court case and as i understand the facts here you can correct me the officers which were surrounding the residence in the back not in the front and now it's  their presence and then encountered an individual in the back yard and they yelled at him to hit the ground now at that point given they had knocked they had announced they were knocking because they were outside the premises they denounced him they'd yelled at him to hit the ground and they did a counter to him then i say why is it not futile why is  not just inhibit the investigation because there certainly would allow for destruction of evidence at that point given that people in the residence know the officers are there to force the officers in the front to knock and announce there are two problems with that analysis one is marijuana trees cannot simply be destroyed in a matter of seconds or minutes and we're just not looking at the trees right but no you have anything to do with marijuana it's not just that it's on the trees and i don't know there are trees i call plants but you may know more about that than i do but the bottom line is there's a lot of stuff with marijuana that can be destroyed well let's assume for a moment that that's true that that there were drugs capable of being destroyed instantly on any money right let's assume that that's true there's a material issue of fact as to  the sequence you can ignore the testimony of even mondale who says that cameron call for julian before the officers came into the backyard and told him to get on the ground that's why there's a good morning may please the court i'm kirk ellis and i have the privilege of representing the city of grandview its law enforcement officers as well as yakima county defendants treece murphy and detective tucker i'm joined by tom miller who represents  detective mcgrady in this action will be splitting our time even li i intend to address the issues related to summary judgment and the issue of the discovery dispute over travis shepherd's deposition testimony mr miller will address the issues related to the trial as the court is aware this case started out much more complicated than where it stands today originally there were seventeen named defendants in thirteen causes of action through the course of time many of those defendants were dismissed prior to the actual summary judgment this case additionally as the court is aware as both defendants briefed the plaintiffs have abandoned most of their claims  actually claims i believe six through thirteen notable of those dismissal is their state law claims so we know what we don't have so why don't you talk about thank you if you could respond to his arguments happily are  i think mr parker made two notable admissions in his presentation to the court number one if you rule in favor of the plaintiffs and reverse based upon the record before you every handcuffing will result in an excessive not that would not be the case though i think the distinction he drew in the one that would be helpful for you to address is that would be true in the run of the mill cases but he's saying if you have a situation where after you come to an individual they bring to your attention that they have an impaired situation that that raises a different question so would you address that that your honor yes i would still would encourage the court to avoid that result because as the judge indicated the graham factors if you look at those factors that's a general broad view of the recent decision from the supreme court white v a qualified immunity case which i'm sure the court is aware indicates that even that that broad graham view is not appropriate the plaintiffs have the burden of directing the court to a specific case a particularly his case and as i stand here i'm unaware of any cases where by once a hank individuals handcuffed they make a complaint request an accommodation to loosen the handcuffs all the cases that i'm aware of indicate that once that person is handcuffed the officers are not obligated to unhand that person and recover that person unless there is some reason to believe that that person is injured or being injured  all we have only was injured he was he came he's like the eggshell plaintive he came with a preexisting injury so how do you comment at that in the case law i don't believe there is accommodation your honor and in two thousand and nine when when these when this incident took place there certainly to my knowledge was not a case on point which would have notified these officers that that was clearly established law at that it could be a constitutional violation just for talking purposes but no established law at that point the correct your honor the judge really ever get to that point in this case it won't seem to me the judge ever got to the to the immunity issue the judge said there's no constitutional violation i believe that is correct analysis your honor where you're going if you're saying well we'll allow you to have the violation but there is no law on point in quote quite which we get quite you know all the times it's a game down but i thought your argument was all about there's no bile ation at all that that is my argument on the end so why are the if you will graham factors not the appropriate test i'm not saying your honor it with all due respect i'm not saying that they're not the appropriate factor so if i apply the gram factors how does your client come out i believe they still prevail your honor we talked about this verity of the crime with your poem and the next factor was whether the suspect poses an immediate threat to the safety of the officer doesn't seem to me that they did i would respectfully disagree your honor as as you indicated in the evidence to suggest that they pose an immediate threat the  evidence before the court is that this was a felony warrants which was being executed on a known marijuana operation it may seem today as we look at it in hindsight that the officers should have not been concerned about their safety or anything like that but at the time when they entered that home they say they did not know what they were going to encounter they encountered mr alghamdi walking through the kitchen mr de is a large man they handcuffed him the evidence establishes that he sat and waited while they execute the warrant he was in handcuffs for no more than forty five minutes which the cases all indicate a third factor the government failed for sure because that is  that the defendant and american medical marijuana certificate and when he went to state the facts for his arrest warrant he li thanked why isn't that judicial deception why is it not judicial stuff you know it's not judicial section because the the court was aware of the fact that the court was well aware of the fact that mr alghamdi had a medical marijuana permit it was by the court's instructions to talk to the prosecutor that that fact was removed it were here in the record is there some indication that the court knew found in the declaration the summary judgment declarations of both detective akins and teresa murphy they both notified the judge reviewed the warrants the first time then teresa murphy told the judge that the medical marijuana information had been removed before the warrant the warrant was actually signed that is in murphy's declaration in murphy's declaration and in a declaration now started to  was that karen a karen sinclair had called for mr all gone d before the officers came in that signifies that they were aware of the officers at the front of the house that's if the timing is that miss the missing claire court rule is that all a suspect would need to say when he or she is being handcuffed as i have a sore wrist and without any evidence of cognizable injury that person by invoking those words could then preserve continued complaint of injury in this case second there's no evidence of any medical damages he never went to a doctor he never saw anyone for any injury there was no evidence before this court that he sustained even an abrasion to his wrist so without more you can't just say sore wrist i get out of handcuffs which leads me to the second point smith the city of who met in the ninth circuit as this court is well aware another issue that will be looked at under the graham evaluation is whether there are less intrusive alternatives available there are no less intrusive alternatives here to handcuffs other than zip ties which i think would probably have the same effect of which mr alghamdi complained so there is no this is a lose lose situation for police is the way the council has framed this issue this is a path that would be fraught with danger and peril for police were there to be some rule of law that if a suspect  wrist and doesn't come forward with any sort of injury that he then has a fourth amendment claim for excessive force so you're really not arguing as i understand it that if he has no injury claim you're really trying to make an argument back against this argument that if i say i have a problem that you have to handcuff me because in that instance you didn't have any injury at all is that what you're saying to me i mean when i read your cases it seemed to me what you were saying is no injury no claim in any instance i think the law does stand for that there needs to be more than just this hey i have a wrist problem don't handcuff me please mr officer and then moving past that if we look at the sausage if you catch a qualified immunity analysis certainly under these facts in this record you cannot say that every reasonable officer in the arresting officers position would know that it was under reasonable and constitutionally impermissible to use handcuffs on mr alghamdi that's why you'd be pauli thing get the constitutional violation go the second there's no law that would say what happened here was  necessarily analyze step one you can skip to the prone to of sausage analysis i would also like to entertain any questions the court may have about other issues if there are any where you are assigned to thank you but i think you have some time left mr parker knocked prior to this incident he took them back there he showed them the marijuana grow he showed them their certificate there was no issue with that when his a to pick it was renewed the next year he took the statistic it down to the police department and he lodged with the clerks that they would know what was going on the officers in this case they didn't even handcuff carrots and clare because this was not a situation where they really honestly believed they were dealing with drug dealers they knew what he was doing they knew what the situation  was officer akin said method that at no time had he ever seen anybody buy drugs from him he had never seen a drug transaction they did not use a a police officer to go in and make a buy to see that whether or not he was using it for personal use or whether this was a drug operation so the the grand factors are all in my favor but the alternative is not to simply on handcuff the person you know if the person is complaining that the handcuffs are too tight or that he has a wris injury they can use multiple handcuffs to make the handcuffs broader so that his arms are not pulled as tightly behind his back or they can simply loosen the handcuffs depending on the situation but what do you say to what the government's judge judicial deception if i can look at the affidavit and erase all of the things that were in there that you might even say are deceptive and i can still find probable cause there is no doesn't that the standard that that is so in this particular situation they saw a marijuana growing it was growing in the backyard there were lots of plants growing seems to me there's probable cause with just that there's probable cause for search warrant for cause for them to search the house yeah i thought that that and therefore if there was any deception whatsoever if i eliminated all right their bare bones in the affidavits bare bones in what they presented they saw marijuana plants growing in the back yard go in that your only defense to that is i have a marijuana permit ok is a marijuana permit an offset to probable cause or is it just an affirmative defense under washington law it's only an affirmative defense asshole therefore i can't negate probable cause under washington's supreme court law yes that's it can with respect to sinclair because if you look at the statue you look at how the statue to set out it says affirmative defense with respect to a marijuana grow and having a marijuana permit but with respect to somebody who is present in the house where marijuana is being grown that's not an affirmative defense it says that these states shall not prosecute  does not state that this is an affirmative defense that's why with respect to the way to get around this even for her the person who's in the house is to say well i got a marijuana grow my friend as one because otherwise she's there she knows they have all the marijuana growing there's probable cause to arrest her there isn't for her because the statute specifically states she still not be prosecuted but i would like to address your last point because i'm always out of town time where you are at a time because you have a red light that i'm mentally finished with respect to destroy deception if the magistrate knows and the officers know that you're dealing with a drug trafficking situation you're going to have armed police officers you may even use a swat unit you're going to come and you're going to approach the situation quite differently than if you know that this is a marijuana a medical marijuana situation and this person is growing marijuana perhaps in that situation he was simply knock on the door and say hey look you have marijuana treason here or plants in here let me see your id card so the way the police three act based on what the officer determined what they did and whether or not their encounter was reasonable and because of the judicial deception all of the officers were looking at this as a major drug operation and they approached the house that way if akins had not omitted that from the search one in the search warrant affidavit the officers in the entire operation would have been simply we noticed is there is marijuana outside your house you know we want to see what this is about let's take a look but that's not what happened i think our counsel for your argument this morning sinclair versus akins and the gravity is