lopez we are here on the peel of the granting of a complete summary judgment against mr south say this claims which we believe is inappropriate on a number of grounds the defendants claimed as a matter of law there was no excessive force used they claimed that the offense was committed in plain view they claim he was arrested for resisting arrest they claimed that there was no probable cause for the arrest and that they claim that there was probable cause or that is entitle to qualified immunity they claim there is no controvert in evidence because of it being in no evidence standard the facts of this case are that there was a neighbor across the street who apparently made a call to the police that it was not a nine hundred and eleven call and so an officer came alone and the neighbor was filming and there are a number of videotapes in addition to the the body ca video what is going to be critical in the consideration of the summary judgment evidence is the fact that the body cam video is conceal and a number of places there's a total of over thirty three seconds that's not visible and the district judge apparently determined that it was not visible it must go against the plane so that he got into a weighing of the fact position and said that everything that the plaintiffs claimed that happened and the bystanders claim that happened if it did not happen on the video even when there was concealment which could have been intentional we don't know but it must have gone against the plaintiff and indeed here it is that the judge also noted the lack of sound  that would indicate because of the time you would hear something like that and the judge to say i didn't hear that so how do you address that that there are some people that can be hit and he said he lost consciousness for a moment and also that these are not high tech cameras but he can't buddy cam videos are not high tech pieces of equipment but you again cannot infer against the plaintiffs when it's a summary judgment video shows it could not have happened then the video rules if the videos unclear that i agree you have a fact issue the question i have is is it reasonable for this record to say of a time getting a person even if that person  microphone where you are certainly mr bloke mr say they did not have a microphone on him and he is a somewhat fleshy kind of individual so if he was hit in the neck he was hit in the shoulder but the point of the matter is this judgment you have a bystander who has not been shown to have any bias whatsoever standing by who gives a sworn statement that in fact the man was hit with a baton multiple times but even without hitting with the baton the fact that he grabbed him by the lapel and throw him to the ground is excessive force when you throw in just say will man to the ground who has no idea that he's being arrested but if you read the transcript of the cantar between mr so say that and the defendant you will see that the st page says mr so say this is basically telling him i'm glad you're here because i've made so many complaints against this man because he's been out here peeing and front of my wife so mr so say the thought that he was the victim he thought that this man was following up on other complaints that he had made that they had done nothing about and then the officer says well give me your driver's license and mr snow said this is well why should i give you my driver's license basically wasn't writing he didn't ask him this name because he knew his name because it was just say the said he had been to the place many times there had been many reports and mr so say the said well i'm not wanting to file a report today he said i'm not asking to do anything just i'm going to go back in my house but he thought he was the victim and that the officer was there to tend to his needs and there is no evidence that mr cortez was interviewed before he went to talk to mr so say that in fact the evidence is to the contrary that lopez went straight to south say th did not talk to cortez did not know that cortez felt that he was offended and cortez was just standing there filming him and what did he say give me your license and he said why i'm not making a report he says i'm coming after you rather he didn't say i'm going to arrest you and there is no probable cause because there's not a shred of evidence not a scintilla of evidence that mr so say the had done anything wrong that would give the saw the officer swing the baton that he actually said he saw land on mr south side and i think he was not in a position that he could see him hit but he saw him attempting to hit and that in itself there was no reason to that i'll read it is in the brief because we have the number of seconds of the various times that there is nothing visible but again here it says that the video shows that  dollars to twenty dollars which is another seven and there's five seconds that only shows the wife and then there's eight seconds at three hundred and thirty two dollars where nothing is seen at all so that's thirty three seconds where you cannot see the the evidence and conclude that all of that would be against the planet and so there was the fact is that the planet had no idea he was being a i ask you this because even if we move past the notion of whether or not there was a cost issue violations saw the qualified immunity situation and frankly i have seen case after case after case where a pa was during a training session for police officers i would not recommend that they do it that way but that's separate from the question of whether it's violated clearly status law so what is your best case or the notion that this violated clearly established law i think under florists vs the two thousand and four case out of the th circuit that you have to have probable cause that the suspect has committed a crime and he never even interviewed cortez he had no personal knowledge whatsoever that our gentleman was doing anything and when he went to mr south say that is just so say the phone that he was coming to talk to him about his complaints and washington versus  you do have a constitutional right to be free from a warrantless arrests and you have a right to be free from excessive force during an arrest there was no reason to throw this man to the ground whatsoever and on the training issue there were no supervisors on duty on the weekend in the brown versus brian county case in two thousand and says that if you have indifference to the rights of people that that will satisfy the requirement of training and satisfy a lack of training case because if there is no probable cause and if there is excessive force then you have you lose the immunity and he or she had as our expert said that there have been better training and he should have been trained in deescalation now one of the most central things that that develops into this argue that is the fact that our expert but just her judge said i'm giving no credit to his opinion he is the police chief he gave sworn testimony and the district judge for no reason in the absence of adelbert challenge in the absence of any objection to his testimony b who just wrote judge unilaterally decided that he was just going to give no way to his testimony whatsoever that is not a proper summary judgment standard the district judge may not just decide he's going to try the case based on the papers than the argument and then that he's go turn around and decide whether or not the plaintiff would prevail at trial you have the problem where there is a legal question on the qualified immunity and again it's not a question of whether this is a good thing that a police officer did i think we can all agree it wasn't the question is qualified immunity and since two thousand and four there has been case after case after case that the united states supreme court further strengthening the notion that qualified whether whether that's the right approach or not the call i don't need to be is very much based on the facts and the case law and needs to be clear that this because qualified immunity is determined by the totality of the facts and the circumstances at the moment of the arrest and that has to be sufficient for a reasonable person to conclude that the suspect had committed a crime he had no inkling that this man had committed a crime he did not talk to the compliant he did not do any investigation what he did was and even his own cheap chief we're all is said that arresting somebody for failure to provide a driver's license is their city policy they will arrest for failure to provide a driver's license and that is against the law the texas penal code thirty eight point zero two says you cannot be arrested for failure to provide the driver's license and this you have to look at the severity of the crime at best this was a class c misdemeanor at best and it's interesting to note that they dropped the charges for resisting arrest the failure to identify they never asked him his name and i rest in him for failure to provide the driver's license is illegal so how can you say that the police officer was acting in good faith but also we have clearly from an objective standpoint we have unreasonably excessive force and when the facts are in dispute the qualified immunity cannot by the record it is not more now by the record their read does not establish that he went and taught to cortez at all and there is nothing in the record that is sworn that says so and so and forth in jail and she had a says who was never challenge says that there was no objection there was no judge he was testimony and said there was excessive force so if he they tried to say there was a plain view which clearly there was not nothing happened in the minute he was not resisting arrest of the say at the time because the the judge chose to believe one and not the other but if there's a dispute as to the facts it goes to the jury and qualified immunity will not be allowed and he threatened him and said i'm coming after you brother still alternately he even had a defense of justification because he was threatened by the officer investigated for disorderly conduct based on his actions with mr porter has across the street his client references that there's no evidence that mr cortez was interviewed he was there's a video body cam from officer is clearly he walks up to the party that mr portis is at across the street misreported standing there he talks to him about what happened he discusses what happened now when you get an eyeful one call or regular call you don't go to the person's being suspected he didn't even know who was being suspected of a crime at that point you go to the person who made the call well what was the officer what was who told the officer test asked him were you offended by those comments and he said he was disorderly conduct as intentionally or knowingly using abusive indecent profane or vulgar language or abuse or threat to a person in a public place and in this case he made it public by extending his his actions beyond the periphery of his own yard just like if he had been standing naked and children walking by he may not be you maybe in his own yard but the fact he projects it outside if he had made racial comments or loud music that could be offensive by itself even if he's confined to his own yard that caused a breach tends to incite a breach of the peace it's not a difficult standard as he approached just trying to get the information to start off he wanted the identification not simply his verbal response to a name rank and serial number because people lie about that so he asked him for his id he refused to provide the id and then he starts walking away he's not just walking back like this if you look at it while you can by the chemical support that but he says no you're not going to come in here you're not going to get here and that's when she will be says i'm coming after your brother and then he says you're going to come with me brother which is a clear indication that at that point he is going to be arrested he also has his handcuffs out if you look at the video tape the body can you can see he's holding his hand cuffs as he's approaching him you're going to come with me brother he's being polite he's not being offensive he's trying to effect an arrest because he doesn't have the information he cannot cite this guy because he doesn't know who he is yet he cannot write a citation because he doesn't know the name yet he had been there he had not been there before the evidence actually  quite the contrary misplaying misconstrues what happened the plaintive had prior complaints against mr cortez his grandfather he had previously filed a complaint against mr cortez his grandfather for peeing in his yard which he got arrested for the grandfather they did take that action mr lopez was not that person who arrested him mr lopez had never been there before and the testimony clearly showed he didn't know either mr opus or i'm s or mr cortez as he approached either one of them he was going there to investigate and find out what happened and take appropriate action but because mr said that kept walking away he couldn't do that at the very least at that point under bostic supreme court mr saul said i knew he was not free to leave this was not a i'm just a casual conversation where you could have just walked away at that point officer lopez had made clear that he was going to arrest the resisting arrest after that follows the court has gotten into much of that but basically his actions after that resisting arrest pulling his hands away into remedios versus martine is under fifty state resisting take into the ground and keeping your arms under your body is enough for resisting arrest charge and all that to stablish a basis for your resisting arrest which you can arrest for even if the other charges don't hold water that one of the and that's why  district judge supported them finding because at the very least you had that he was resisting arrest and that was indisputable and he also had charges afterwards for sultana peace officers now on the excessive force you back up to that a little bit argument that is even if you use the baton and still qualified immunity part of the difficulty i had with making that argument was that there wasn't any specific evidence or testimony that he used to put on it but tun in any particular way for example these guys plaintive and this witness he came up with at the last minute testified that he got struck with a baton i still don't know where did he get strike struck on his arm on his back on his ribs on his head did he get struck on his hands when he was trying to to handcuff him he only said he was injured he didn't say where he didn't say when he said at the time that's why the district judge was having difficulty giving any credence so that allegation because it doesn't require one shot be heresy doesn't require a irrefutable evidence that that happened it only requires the judge to look at the facts in the light depicted by the videotape it's hard to see anywhere in there as he pointed out there was neither a sound that of one of the guys being hit or him making any sound or anything that would indicate that he had been hit in  addition this is a thirty minute video so for thirty minutes the st part was less than five minutes the remaining part after that never once mentions and by the way you hit me here here here or anywhere he doesn't make any of the case that he was actually struck ship shepherd the city of sharif or even with the video is far from the paragon of clarity that case required that you have to rely on the video in that case it was a question whether he was ten feet or thirty feet whether he was running or stumbling the point i'm trying to get at is there's no prior case law to establish that even with the fact he's alleged which are very broad and vague to say too much force was used he has not identified what actual force was used so without that it i didn't specifically address that because i didn't have something to address they didn't say getting up a time to delay would be different in a time of the head i don't when it was coverage because he was calling in for back up and he has his body cameras right next to his his microphone to call back to the city for backup that's the that's the time period when it was covered but during those time periods you can still hear mr self said play just want to make play to want to make an argument that you couldn't hear him or that it was that he or that he passed out somehow but if you look at it consistently you'll as pocket it fell over here you see the officer reach back here grab his baton flick it open behind him police fan forward reach over and push it and push it away like this over to get the knife out of the way during that time the wife comes forward and wants to get the phone his phone he says get back and get back and in his video now you can see his hand with the baton right here and he's going like this get back man get back man you could see his difficulty is if this case we don't have a factual dispute as to what was going on because the video fills in the videos still in the blanks and what you have here is something more like the original situation you had with the hughes or mode next where they said there's no case that shows beyond a doubt beyond debate that this was this would have been a violation portions and only include the portions that they want to be able to say see he said that if you look at the portions we cited which would be the the entire page you could see where he said but no that's not what i meant what i meant was something else so those distinctions we authorize you to read us for that basis that's their conclusion based on what they said what they said was an officer is allowed to get any information from a suspect getting their driver's license instead of just  m instead of just asking them what is your name rank and serial number they're entitled to do that it's a law authorised way to do it they then extrapolate that to say therefore the court of the city authorizes arrests for not providing your year where they could not identify any single incident that is a claim without support because i said i didn't find no evidence of the possibility of any recurring situations they talk about in really their only claim was no need or know no references there was an obvious need to do so although the plaintiff proposed expert wanted to talk about what he would have liked to have seen in other words kind of training he would like to see and he agreed numerous times that he was talking about best practices and officers not held to liability based on best practices his health a liability only if no reasonable official would have done what he did in those circumstances and there's prior case law to support the basis to establish that no officer would have done that again i get back to the colby carson case of last year where you had a number of different competing fact mr i mean our because it seems to me that's the only real factual debate is what he did with his baton and whether he did hit mr sauceda and so that's why i'm asking whether that's an eter don't want to be misleading to the core but the difficulty i have with that is it's not a simple yes or no whether he was you tom because you haven't identified how where to what extent again i don't agree that the de minimus injury is is the pool critical here but we do know that he was not hit in such a way that he die or became just further disabled or anything serious  to the fact that the force wasn't excessive it's not the fact that you were injured enough to sue it what it is how excessive is the force to create the injury so that's what i'm asking about the baton and that's what i was referring to thank you just a sense i would like to specifically address an issue that just as haynes judge haynes brought up about mr r you are statement that there is no indication as to where he was hit in our record excerpts we cite the some say the deposition beginning at page one hundred and thirty but on page one hundred and thirty five of the deposition mr r you might ask him when you were standing was that before you fell to the ground or after you got up he said he hit me here so i had to be standing up he damaged my nerve so that on the video that end up like the baton if he's standing up but thomas claimed to have been brought out only after he was on a branch well he said that he was hit resolve those issues right here there is evidence so that has to go to the jury that seems to be what's missing here and mr argue lab made a swipe at saying oh well they came up with this evidence at the last minute his whole summary judgment was filed outside the deadline without leave of court so if we want to talk about last minute filings his entire motion for summary judgment was filed in violation of the pretrial order without a motion from ok i'm not concerned with when the evidence came concerning what the evidence is because at the end of the day if we disagree with you about the arrest and we find there was probable cause or at least qualified immunity level of probable cause to make the then you can use some force not all forces excessive the question is excessive and he's fighting or he's resisting getting him because you can do some as a police officer some action but it is clear did the time hit and that's saying that hitting with your hand is acceptable in all circumstances don't misunderstand me but why did the timing it he said st of all the excessive force is a two part question he threw him to the ground for not giving him his driver's license there is it is undisputed that mr so say they had not resisted arrest all he had said was why do you need my driver's license i'm not making a report and he gets thrown to the what was it was a motion for summary judgment hearing that for whatever reason the district judge decided that he was going to make a merits determination and he was going to waive the prior back surgery he was telling the officer i need an ambulance because he was thrown to the ground for nothing i also want to address mr obvious large issue about probe jetting this disorderly conduct across the street he was behind a watt yate and the issue is not a man standing naked the breach of the peace issue has to be immediate it has to be such that a breach of the peace is going to take place at that moment this is still going on across the street there's some sort of discord between these people which again mr saw sate of thought he was the complainant he was complaining about the number of times that mr port has grandfather peeing in front of his wife he had made multiple complaints and you know the city of san benito is not a very large place supports can take judicial knowledge of that if there have been multiple neighborhood complaints between two neighbors they're going to know about it and so the question is that he did not know that his hands away until he was on the ground and your honor brought up the issue of a genuine issue of fact and under the bus sonics from his on versus the yahoo county th circuit two thousand and one mentor case great american insurance that circa two thousand and five if there is a fact issue that's material to the resolution of the outcome the court may not decide qualified immunity on a summary judgment period unequivocally there is clearly effect question here and it could be it is improper to decide by summary judgment thank you cancel we have your argument in thank you counsel i thank you your hon