you don't charge argument time for setting up as of june twenty sixth two thousand and fourteen which was the date of miscue genies arrest the law of this circuit was clearly established that the use of entirely grew to this force on a restrained and relationship is yes in the sense that the police officers mother and sister are have a history that it wasn't just a police officer it's a police officer with whom there was a history of some sort  exercise supplemental jurisdiction over that and therefore they are in i believe staten island supreme i do not represent miscue gini will that help that but they they can proceed presumably they can proceed in state  isn't necessarily the end of everything it can proceed with the ice off the boundary yes that's my understanding i believe they were properly sir i was filed within six months and served within six months but the federal excessive force claim is purposeful yes is that was that part of the complaint that this was a purposeful act and in the sense i believe it was i don't know if the history was in the complaint when i know i've been history was in the deposition correct but in the it was it was it but i don't remember judge i have to when i'm after i'm concluded here i'll answer that question i can ok and this doesn't matter as a matter of federal law i'm concerned about the possibility that this is not recklessness that this was a deliberate action by the police officer because of the history and because of what may or may not have been  a jury can certainly conclude if if one credits ms testimony we have a place people see plus d which is ouch shuttered don't make me hurt you i understand that part but i'm talking about the history that can happen to used you have to worry very much and that's why there's such a thing as a fight immunity you have to worry about the police officers ability to get his job and the use of force to get his job done if this is all about not getting his job done but about settling an old score it takes on a different cast to me it seems it seems quite different i want to say let's assume for a moment that and i'm sure if i take too much time preside it will give you back whatever you need i hope but but supposing supposing that this was a jury was able to find out what's before it's a summary judgment  n that it was deliberately done before as to settle old scores let's assume that for a second what effect would that have legally as to the federal claim does it is that is it well established as firmly  police officer know that that that they can do that that's against the law well i think this court stewart's prudence yes absolutely whether you're thinking about a fourth amendment claim is ok in this court suggested as much as and it's the america versus town of west hartford in two thousand and four which is where this court warned officers against gratuitously employing plain pain pain compliance techniques this is no different  whether there's an old score or not in those cases where officers from the from the different circuits where an officer knows somebody is in pain you can't then just make it worse during the course of physical shuddering it as if a pain was going up and down or spine that's how i interpret that and then it's what's significant is he says don't it's his immediate reaction which is key because it shows knowledge on his part case like this out no no no no no the excessive force claim is not the initial handcuffing where does it start but it's so i guess it starts with the if if all we had was ouch and then nothing happened next we wouldn't be here we might have a negligence claim are you not and i'm happy to tell me otherwise yes judge all you're arguing is that it's ouch and don't struggle sort of makes another reaction so he knows she's in pain she knows she knows he's in pain he knows she's in pain he then rach is the hand comes up causing more pain which he she does react and then he leaves a when i say there i mean than forty minutes until the transports haitian to central booking in the police car no no but it makes sense i mean she's scared a jury could find problem well i'm not saying anything is we're looking for clearly established law and the clearly it's the law in so far as there is and often seems to focus on whether the the person being arrested actually says something or not that may be a foolish that's significant because it concerns knowledge ok it's the knowledge on the officer that he it's the knowledge that the officers knowledge that he had that he has done something beyond just ordinary handcuffing and this is where judge johnson's opinion is wrong he ignores the second handcuffing place a second handcuff and the second act the subsequent act but it's the knowledge that the officer has and i think the seventh circuit decision makes clear officers in these circumstances comes either from the supreme court or the circuit unless there's a consensus among the circuits no neither the city nor myself have found a case before june twenty sixth two thousand and fourteen i think in sheer which came in i think two thousand and fifteen the court established it recognized the claim of excessive force through the improper use of handcuffing but no i didn't come across one where you clearly confronted the issue somebody who's handcuffed prop probatively and then is a single kick to the shoulder he says that's clearly established that that's excessive force there's no difference between the single kick to the shoulder where someone is appropriately get to finish is that you can't use entirely this force on a restrained and under system the rest be in a manner designed to inflict injury to inflict injury that constitutes excessive force that is this court's decision that's what this is a case of and then you can go to the established and see em over i can can do but again every circuit yes there's a knowledge requirement the judge johnson said there's nothing talismanic about you know somebody just fourth amendment rights don't rise and fall whether they say anything in specific it is a relative consideration absolutely because the officer does have to know otherwise floodgates can open but if you have injury and it's and knowledge that the officer has done something wrong in here he knows on our version of the facts that was clearly established imus i'm sorry i'm this something that's been referred to as the as my own test part two of which the officers made aware of it but that the they're the rest the meat cleavers to that effect and that's a stumbling block here to what may very well but when the officer knows there's and there's you have to be anything is it an officer can intentionally inflict pain on somebody that's what we have here and as one that is not it's a consideration if you read the case i mean i know you have to obviously but it's with that thank you it's not it's not it's courts have adopted that language but that is the seventh circuit didn't in stand back or it's actually stand back sites there are just same bax which is five sixty nine hundred thirty seven sixty seven or cases indicate that an officer may not knowingly use handcuffs in a way that will inflict unnecessary pain or injury on an seven circuit ri that's staying back citing another seven circuit decision saying heard but this court said the same thing you can't sound like a broken record and i'm not using acronyms but you know you just can't intentionally hurt somebody and that's what we have here a jury can so find morning your honor his main place in court diana lawless on behalf of the this is a definitely qualified immunity case because there is no clearly established law that alerted officer puzzle that he could not tighten or had to loosen the handcuffs here as has been me but here as we've been discussing there's no circuit this court has not had on a dress binding precedent that would require a loosening of the handcuffs and a manifestation of pain no circuits held that i would like to point this court to the brown case where judge droney was was on the panel there and the query for excessive force qualified immunity is whether every reasonable officer would view the force used by defendant in the circumstances in which the force is applied as excessive according to the clearly established law my adversary likes to make a point about or to just force intentional force things of that nature i think many of the cases were discussed there that you can't take cases that are does not matter for excessive force intent does not matter for qualified immunity on that point i'd like to point the court in particular to judge hall's recent opinion in the berg case where there there was a tribal issue of fact the court found in a first amendment retaliation claim and still even though there was a there was a tribal issue fact as to the intent of the arrest or that matters for first not retaliation claim because there was probable cause for the arrest there was still an entitlement to qualified immunity reasonal officers could disagree about whether or not they violated the constitution when they arrested someone probably cause when they also had a bad intent as or here we don't consider intent when we consider excessive force claims  all that yes they had a messy messy and to their relationship because he was trying to get her to do things she didn't want to do right and there's a there would be a factor spewed about that his testimony was that he may be i believe his house when he went out with her but nothing it happened and it does seem that this all kind of just came up at the deposition and it didn't seem to be something that the officer was thought was he wasn't it doesn't matter but it would be if anything it would be for a jury question about intent intent is not something we consider for fourth amendment excessive force claims we talk about the degree of force of a and for an objective a reasonable officer and specifically for qualified immunity we look to whether an officer would know that they're violating theirs they have notice that they're violating the constitution and i think here when we go through we just say that all that happened here even if there's an intent closing tighten the handcuffs she said ouch unshuttered he said don't make me hurt you he tightened she said our maybe gave like a concede for the purpose of summary judgment there was an injury but we do not concede that the injury was manifest at the time this is an officer this is the second time the handcuffs were placed on this plane if the initial arrests at the precinct and she was handcuffed in process and taken to the cell no complaints there this is the second time when she is going to be transported to central booking that's all that happens if he's putting this is one assembly one act of getting handcuffs on and as the district court and many of the courts of recognize the district court as the test we're talking before even the district court here said that if you're going to put handcuffs on somebody which is something we recognize happens is fundamentally different from other types of force because it happens often during an arrest and handcuffs have to be tightened so that they don't loosen and fall off so i don't think that there's any precedent that would show that this officer knew that he was doing anything  and i mean the violin the concept of the degree of force that he does it that he i don't think that there's any person that sure that a reasonable officer would believe that the situation here that the off the i think that there has to be a manifestation that the resulting force happened in a way that caused an injury that would show that you would have to take the brunt of her lose and just that manifestation here we don't conceive that there was a  directly at the time that this happened so you're sort of the law has to be the manifestation has to be at the time even if it even if the officer has put them on so tight that they factor as we go down the line he obviously did put them on too tight he said i'm going to cause you pain we can't consider and i mean i think we look at how tight they are because we acknowledge that handcuffs must be put on in camp and can be tightened so they don't slip off i mean you could say that i'm go know tighten them so hard but then it still doesn't work out that way but we don't ever think about the officers intent no court i've not found a single case where a court's found that a plaintiff can recover absent the request solution which is what  verbal complain of pain or physical manifestation of the tightness of the handcuffs at the time so you would know this is entirely for them you know yes absolutely we could make them more clear in the first part of our analysis is to whether there was we could make the all clear we wanted to w could we could make that walk clear that once there is a manifestation of pain or that it doesn't have to be said enough and if it's something other than the actually saying is well this is correct the complaint doesn't reference the history but ok papers the fifty six one yes but i don't think it really emphasized the history i mean there was reference in point o amendment that was not the point we were making the significance of what he said is evidence that he knew she was in pain right that she was hurting that's the manifestation  manifestation manifestation but no not no knowledge no knowledge no complaints and then when we point to the complaint which is don't make me hurt you and then he hurt you that's knowledge as mu is that it as might recognize that where the defendants ignored the arrestees pleas that they had cause were to take is a consideration in evaluating the viability we agree but again if you if an officer is doing something knowing that it's going to hurt somebody that violates the fourth member violates the fourteenth amendment that violates the eighth amendment we know from the statement don't excuse me don't make me hurt you that he knew by then don't make me hurt you god maybe it does the jury could find that it doesn't that don't make me hurt you i mean that she there is actually mia so there is another point i want to make though the complaint does find we don't have a for i think that's a red herring for this purpose for this discussion i do because that gets to the subject of motivation why she would want to why he would want to hurt her and that's not relevant for fourth amendment purposes it may become relevant punitive damages if we get there right but i wouldn't focus on that and if there are no other questions thank you very much thank you both again we will reserve decision in this case back to you in due course