good morning runners i'm counsel for michael and we are appealing from the district courts grant summary judgment and its denial of our motion for reconsideration today i'd like to focus on the use of circuit and was at all times material here to the forces least justified against nonviolent misdemeanor who did not flee or actively resist arrest and pose no danger to the officers or others similarly no reasonable officer would use more than minimum force on a nonviolent misdemeanor who does not flee or does not actively resist arrest or pose a danger to the officer others now here danger the district work correctly found that mr mike was not posing a danger to anyone on the scene another graham factor that again rules in ways in appellants favor he wasn't fleeing mr michael did not attempt to flee and what if at one point he attempted to leave the scene which i believe he was lawfully and sidle to do because he was suspected of committing no crime but he stayed upon the officers instruction and detention of him there the only graham factor that the court found weighed in favor of the defendants in this case was the issue of resistance and i've heard district where judge characterize it as such in this case strikes me as such where you have effectively a court using a claim of resistance as a talisman for all subsequent force and i believe that's what we see here because the force was not properly weighed and part of that is a summary judgment problem i believe on the rule fifty six standard we have sort of a one be cotton issue in this case in a couple different ways one it's clear the district court just did not like mr michael and made character judgments about mr michael's behavior routinely calling him childish throughout the opinion are you saying then that's it some kind of a credibility determination the summary judgment is that what you're meaning by those characters they absolutely are honor because a reasonable jury could look at these facts and conclude that mr michael was rightfully upset about being unlawfully detained and arrested was his behavior remarkable no but this court is recognize that our citizens don't have to be perfect in order to avoid using force on them you can be stubborn and irritating and law abiding all at the same time but the district court i believe attacked mr mr michael in a way that entered into the purview of the jury in that regard also one of the more problematic statements made by the district court was it's noted on denim page sixteen where the court road as evidenced by the dash cam video shows michael resisted arrest by telling the officers he was not under arrest by not complying with the command to stand up and by tensing up and firmly gripping the arms of the one chair the idea that the video showed that michael was somehow firmly gripping the arms of the lawn chair is just not credible because the video is taken from some distance away and immediately behind a tree no one can see on the video what's happening behind that tree and while the officers may testify that mr michael behaved in a certain way the the thrust of mr  michael's testimony about what was going on beyond that tree is that he was sitting in a matter of cans of peaceful protest he did not have his arms wrapped around the tree so to say that the video some it was clear that he wasn't going to comply with the arrest order and yes your honor and graham says you know sometimes you have to use force to effect you can use force to affect an arrest right that's correct your honor and then the question becomes what's reasonable in light of the type of resistance that's phase and most sitting in a lawn chair is passive resistance or you can characterize it underworld terms as in consequential or diminish and we divide that can we divide the two player i think we're required to look at the actions of both officers right yes your honor i think i understand your argument with respect to true vera using the baton and that's where the injury actually occurs on that arm shaky on the left arm your honor that chafey yes so what about for vera he was on the other side and there was really no injury there so what's the argument with respect to their well your honor i think we go back to the chambers case which tells us it's not the injury that matters it's not dispositive i believe that trevino i want to agree with that but i watched the video and i didn't see any particularly aggressive moves by her on the other side and i will whole reason that mr michael with respect to the excessive force claim with respect to the excessive force claim i believe by i think you could look at cases similar to be a cook or coach or copeland and say just the act of engaging  takedown and participating in this takedown on a nonviolent misdemeanor is unreasonable under those circumstances but i do concede that his use of force was far more reasonable than mr cha as was under the circumstances but still on reasonable mr storms let's assume that the facts show that there was no violation and lower here the test as i understand it is one is the police officer plainly incompetent in believing it was before acting as he did and  were arguing that and i believe it was your honor i think in that goes very much so to the unlawful arrest portion in that i don't believe this was an objectively reasonable mistake of a qualify him for qualified immunity under the article probable cause standard i believe he was plainly incompetent every time the officer cervinia as well not shave the officers appear to me to have jumped in on the side of the ladies that wanted the keys didn't act very sensible either and so we have a close call here in money the officers were right to think that they had reason to do what they did in my case if an officer and the objective facts show that the officer is in possession of possession of knowledge that it's a civil dispute at that point in time it's a question for the jury in peterson it was an arguable cause the guy lies to me about something that could otherwise have been a maybe a criminal act on the part of one of the participants and only after he was really detained in subjected to harassing coercive questioning for a period of time your hon or he should have been allowed to leave the scene and he wasn't but at that point in time when he makes a false statement no reasonable officer in the united states could believe that they could arrest somebody just for making any false statements such but generally making a false report to a police officer is a crime right well if one's making a false report there you there is not it's not just the  of making a false report it's also doing it in a way to invoke an investigation or materially mislead there's usually an initially zero magri if you've got some good arguments if you dig into the elements of this particular statute but as a general proposition making a false report to the police is usually a crime so why is it so unreasonable for them to live reached the conclusion that there was at least arguable probable cause we don't have and we don't have an individual making a report to the officers your honor we have an individual is going back to sit in the chair and just wants to be let alone and he's being questioned and harassed by the officer and at that point in time he gives in to this course of questioning and says fine you're right i'm saying that when he says you can be a witness against me because he knows that he doesn't believe him so at that point of time we have officers and it really goes back to the very beginning of this to get the tenor and again subjective intent can be viewed and we're talking about some of these civil matters slightly but when one officer trevino shows up on the scene he says this is ridiculous this is a civil matter and michael who moves the constitution better than the officer does it says you're right so why are you bothering me and at that point of time he says i think i'd like to press charges for harassment and then at that point of view no that says i'm going to place you under arrest if you don't give me the keys and there's no reasons of place michael under arrest he knows he's there for a civil incident but he's so frustrated by michael who is stubborn and won't bend who was will so this was a situation where from the very outset officer trevino was trying to fabricate a reason to arrest mr michael is that though does that that lead up affect the analysis of whether that statement was false for purposes of qualified immunity arguable probable cause for us oh i think it does because i think it helps inform us that no reasonable officer would have assumed that this clearly ridiculous statement under these circumstances arising from a vendetta at best involved in court was actually a crime this is a man who threatened this officer threatened to arrest michael for like four different things right deprivation of services and then it's going to be theft and now it's false statement like while ah so yeah i think it tells us that this is preposterous honors i am out of time and i'll reserve my final bid for a bottle thank you trevino ever get to the scene in the first place well let's go back to the previous day this is all information the officer said he recalled by michael's mother's is daughter which would be the saying the rental vehicle is in my mother's name i understand it yes the sister called the police and reported this story and vehicle in that right  she was and and so forth so i'm not sure i'm following your recitation of the facts though the point i'm getting at is this wasn't the first time that officer trevino had interaction with mr michael the previous day he witnessed mr michael act rather radically ultimately he did under the giving up one set of keys mr trivino thought that's all that we're dealing with here issues don i can go home i should have to see these people again four or five times over the next twenty four hours the phone rings out the larger city police department with reports relating to mr michaels possession of the keys after trevino comes back the following day on report from mr ashe again saying i need a cop here because i don't know what mr michael going to do what business was it is it of the officers that that he had two sets of keys i mean and wouldn't give them up what's the crime well i think that a reasonable argument could be made that if the mother is the one who's financially financially responsible for the rental vehicle it's not a hit in not much of his business is it as a police officer to protector of mothers and their finances with their children  well and there may be something to that but we also have multiple situations where officer shorter form civil standby is to prevent potential domestic disputes from arise is it or is it  for a individual to stick their foot under purposely under a wheel and let the wheel roll over it and then start arguably a crime to turn around and report to a police officer that they intentionally ran over your foot when it's clear from the video tape that you intentionally stuck your foot under that vehicle crime is reporting that somebody report i don't follow that a crime in this particular situation was that intentionally ran over his foot with her automobile that was a crime mr trevino believed that would be reported to him i think the an opinion or a fact and it sounds like they both agree it's kind of unclear from the video but it sounds like both mr michael and the officer agree that the foot was run over at least there's no dispute on that is the fact that he's arguing that it wasn't plainly incompetent for the police officer to find this a crime and that the case depends upon that i am arguing that he was not plainly incompetent believing that a crime had occurred at that particular time yes that is what i'm arguing about on the excessive force to change the subject a little bit what supports the district court's conclusion that  mr michael was gripping the chair primarily the testimony of officer chafee i would argue that it doesn't matter whether he was gripping the chair or not he was refusing to get up from a seated position after he was being to you were under arrest you specifically stated no i'm not and remain seated and it's just put it in context i mean you'll agree that almost all the graham factors go against you except arguably for the resistance i would agree with isn't the level of resistance key here i would argue that the level of resistance matters but the ground factors only determine whether the conduct or whether the force was reasonable qualified immunity we have to look at katz and that knowledge is that the ground factors may play a factor but the grand factors aren't as positive of whether qualified immunity should be entitled to the officers at the time now we have to look at where the officers on clear notice that what they were doing violated a constitutional right well we have the words case and word ish the erratic driver pulled over non responsive to the involve a individual who is parked outside the minneapolis airport was approached by the officer told him to move his car he said no i'm not moving my car the officer wrote him a ticket foster ripped up the ticket refused to get out of the car two other officers came over pulled foster out of the car and there us to them and this court said that the officers use of force and pulling foster from the car and handcuffing him was reasonable under the circumstances and no reasonable jury could find otherwise law in the circuit that says if you're going to sit down and refuse to comply with commands that you are under arrest and allow yourself to be arrested it is reasonable to remove someone from the scene even if you've no basis for an arrest if  to support an arrest your honor i think if there were no facts that support of the arrest the analysis may change i would not concede that there were no facts that supported an arrest in this particular situation however but you concede that at the level of force matters i mean the person sitting in the car the officer says get out he says no doesn't do anything else an officer shoots him there's a problem right absolutely i would concede that but so so again back to the facts here you said that one of the officers testified that he was gripping the chair didn't the plaintiff testified to the contrary and don't we have a fact question because you certainly can't see it in the video it's blocked by the tree i would agree that the particular issue as to whether she was gripping the chair would be a fact issue but it's not a material fact when this record was wrong on that right i don't think the district court was wrong in assuming the facts in the light most favorable plaintiff then with respect to that one particular immaterial fact i think it's debatable arm was in this particular situation after chief even admitted the procedure she used he never heard of breaking in or before he was trained in this particular procedure is used to gain control of an individual now the amount of damage to the or just the amount of injury to the individual is a factor but it's not dispositive that's what chambers the list correct me if i'm wrong here but i thought the police officer who had almost all of the interchange with the person that was injured was not the one who threw him to the ground and broke his arm is that right that is correct officer then later as to the person who is being sued here for damages much of the give and take with this party didn't involve him right both officers are being sued their individual  but i will agree that the majority of the interaction with mr michael at least and july sixth occurred with mr trevino mr chafey did have interaction with mr michael the previous day when he told him you need to settle down and then he dropped the key is in the street and that was essentially the end of that particular interaction there is one other issue that i would like to touch on as it was raised on appeal and it deals with mr michael's request for reconsideration on with respect to the terry stop this case was never about terry stop it was never pled it was never argued it was until they brought it up in response to our motion for summary judgment the standard of review for the rule fifty nine easy is different and qualified immunity obviously the qualified immunity we're looking at that is a summary judgment decision noble fifty nine is a clear abuse of discretion you'll look through the complaint which i'm sure you you all have or will shortly and you'll notice that there's only two causes of action alleged one for excessive force and one for false arrest the words reasonable suspicion are never stated in the complaint all the state is probable cause that's why we made a motion for summary judgment on the false arrest and the excessive force claims the district court was correct and not considering the jury stop he went on to further say that even if i had considered a qualified immunity would have been granted on that particular issue anyway and we believe that is definitely something that the district court got it right one other thing i would like to bring up with respect to some of the questions i've been asked today and it has to do with how are we supposed to view the evidence in this particular case we do have a videotape we have u s supreme court case law saying that when we have statements made by one individual or contradicted by the videotape we rely on the videotape that the only issue that i will concede is even debatable that's not shown by the videotape is whether he was gripping onto the immaterial because the level of resistance which is the only factor you have going in your favor is key to the level of force that they can use right so how can whether he's gripping the chair or not the material let's for the sake of argument just say he was passively resisting we do know he was refusing to get up that is on dispute that he was refusing to get up there's not a single  arrest in the first place but after being placed under arrest the case law absolutely indicates that you can remove an individual from a seated position once he refuses to get up and i'm out of time thank you we request the decisions of the district court you mr storm what case do we have that would have put him put the officers on notice that the level of force they used here was unconstitutional most narrowly kuku and copeland i believe and i  in part because this wasn't but it's also relevant and that's really critical respect to the injury you know the injury informs us about how significant the force was you know that was used and they just recorded make another inference that was wholly unfounded by the record and on page seventeen with this record said the injury healed without need for surgery and without permanent impairment but lack of permanent impairment is nowhere in the record and in fact mr michael in his deposition of pages one twenty one through one twenty five explains how it's imperative permanently i'll admit i did not submit piles of medical records to discuss his injury because i never thought that a broken arm would be minimized the way it was by the court an objective lee serious injury and it's tells us that significant force was used as part of that arm bar and just another piece of the affidavit containing information that mr michael made a false statement regarding his possession of the keys that's in that serial to the qualified immunity analysis mr michaels testimony was he did not know that he was in possession of the keys at the time it's for the jury to believe whether that's true or not but at the time that he was arrested no one arrested him saying they had already will probable cause the or probable cause that he was in possession of the key and that's an issue that's for the jury is not something to be considered here thank your hono thank you council court appreciates your briefing and arguments today the case will be submitted and decided in due course