a request by the father of the child whom they both had born to retrieve the child from domestic situation she was spotted to the scene and proceeded up to where her father was who was standing there with another officer we believe officer carvel that's not clear for the record however the she said i'm here through the boy can i have the keys he gave me the keys and you know can i go she testified that there was an eye from the police officer which is different from a shake of the head i think in normal parlance so she took that as an affirmative from the officer and obviously by having given the key to the permission the homeowner to enter the house she proceeded up used the key to unlock the door and proceed into the house to retrieve her child who was sleeping upstairs when she was inside the door a few steps she heard a bang behind her and officer suddenly officer had control of both hands by the time the takedown occurred the officer who was in that position does not know what the mechanism of fall as he does concede there was a fall he wasn't able to see what  is not stopping who was going into a house that was a crime scene they don't know what the child is in there or who's in there or what else is going on in the house and she's yelling and screaming at this point  and so they react to calm things down and take her outside and put her in the car now under jackson which is my  it's not clearly established that of those circumstances you could have a constitutional violation but what they did to her was far more  ting that you know she didn't feel the fall but there was nothing indicate that her injuries were very bad and he sort of in car for twenty to forty went to the ground and was at least partly down on her knees at the time the officers came up behind her and pushed her to the ground and then another officer got on with his knee into the miller back and and and she had been saying according to her i've got a and excessive matter because first of all they were necessary if you believe that the officer said she wasn't taking flight like she would be virtually non responded if you will she was asking questions according to her record of the officers she was saying what are you doing and what are you no arrest i'm going there's no evidence in the record that any determination was ever made to make a formal arrest so you've got different conduct on the part of the the plaintiffs in this case and even when jackson rice agree just and you have more far reaching conduct in terms of the the manner in which injury was afflicted from a standing position to face first with their hands behind her back very different the jackson and the fact that there's according to the situation i think there's less of a need in this case because she was not kicking she was not played if you believe yasser side of the story they admitted that they believe that she was being verbally she's been verbal and according to her what she was doing is saying what are you doing what are you doing why you asked me to do this from over from behind that's his testimony he had he had heard and officer cordella says there was no need for any application of any force if you believe the point story as to how this went down it's worth fact fighter to determine whether or not on the merits of the claim that qualified immunity i mean there's certainly enough to go to a jury or but on a constitutional violation constrain the facts most favorably to the plate that i think the answer is yes we can establish a constitutional violation is currently going to the second private term whether that was clearly rather than going to all of them i'm just going to pick up a couple of the big ones that i think you may find somewhat determinative first the core facts of this case are that as a arrived on scene there were three police cars present in the front yard this is just a small two story apartment with room with a small front yard in front of a little courtyard off to the side of the front door there were three police cars present when she arrived on the scene there were three uniformed police officers present in the front yard so a very small twenty foot front yard from the street to the front door  there was people standing around being interrogated by the officers when she arrived on the scene she knew this was a crime scene there had been physical violence at the scene between the two parties they were physically combative and at least separated them according to standard procedure and were interviewing them to try and ascertain the facts of the case and if they were going to charge anybody appellant went over to officer curtis was on the sidewalk briefly discussed some questions with her husband rather than the officer and apparently she she just stormed off he did not and her own testimony states that he did not tell her that it was ok to go  some perceived fear towards a child she goes up to the front door and she's going up to the front door sergeant pergola who is about ten feet away from her off to the she continues proceeding towards the front door opens the front door right near near the front door he yells at her stop come here she ignores him the police are confronted with a situation where they have an unknown this person was unknown to cardinal law and unknown to baby who were near the front door these two officers didn't know this person she had talked out with officer curtis on the street that they knew they didn't and the child was asleep which negates some of her she fear she knew the child was asleep upstairs nevertheless she proceeded to the front door they yell at her to stop she ignores them they don't know what her intentions are they don't know if she's planning to go in and get a deadly weapon and do harm to her ex husband or her or his then girlfriend kara norene he does they they don't know back in their face they get into the little living room right inside the entrance grab ahold of her set her down try to sort it out on the couch and she's now she's yelling and screaming and the controller that took her off the kalak and as they picked her up they each had a hold of her by one arm caught on one side they got together and apparently at one point she wished she the floor sweep was not necessary in this case he never testified that no use of force was necessary that was not necessary use of force was clearly necessary to control the secure rational woman and for purposes of the summary judgment motion we can see that somebody put their foot out in front of her and maybe pushed her over the foot probably baby we're not sure things happened real fast and the things in which she went down very softly was controlled by our her district was controlled she cared floor which was a padded carpet floor with a very relatively light blow impact and suffered very minimal damage why couldn't a jury find that she arrived on the scene where three police officers were in the front yard along with her doesn't hear anything from these officers and toshi on my office the go or could a jury find that she is right in her assertion that i think this said to her because this is all a very confined area and the and then she unlocks the door in which she could see him according to her she didn't know anything with happening until the door behind her was slammed open and she says she determinations himself if it can be done from a viewpoint of objective reasonable which now let me ask let me ask as one thing first we have stipulated for purposes of summary judgment that she did trying to control her and she knew that she was not supposed to be in there it reasonable person would know you don't break into a crime scene and that was demonstrated in the cases cited and well listen and act like you didn't care scenario didn't lay out the facts as you just did here well that is he has he has the officers placing her on the couch after they take her damn for example inside the building were unanimous in their think their statements that she was struggling the district court found she was struggling and used that word in its opinion find facts on summary judgment if you can determine whether or not there's a factual dispute in the context of qualified immunity you have to take the facts in the right most favorable to the injured party to the point of that and i think you have to resolve all factual disputes in her favor i think there if there were any disputes to be resolved they were were hauled in her favor there was no question she was struggling her statements that she was struggling or wasn't resisting are not pfaff's you have to look at the actual conduct of the parties there's a part of my brief in there that that i described this everybody can make conclusions i wasn't struggling i wasn't resisting well you have to look at the actual facts there and she came in and when they were had her on the ground and she said it was taking all three officers to try to get the handcuffs on her to to hold her down and want to get the handcuffs on and she was she didn't cause struggle and she fighting she was fighting with the officers now you look at the realities of the situation you look at the actual conduct of the for determine whether or not somebody is resisting or struggling the officers testified that she was pulling away from them she was trying to avoid us to get it in handcuffs she was doing various physical harm to the district court by affidavit and by deposition testimony she was struggling to the point where they had to do a little engage in a little bit more force the