when granting summary judgment on the basis of qualified immunity to the defendant that the district court decision and the police repeatedly mischaracterize the confrontation between my client and the defendant appellee as a fight when the record clearly contradicts this assertion there are multiple factors that lead to this conclusion that are in the record the most egregious mistake that the district court made was in finding that both men involved in this confrontation were visibly injured that assertion itself is contradicted by the defendant actually in her own test in her own deposition testimony  that can be a factor but the reason why it is such is such a critical error is that the court itself leaned on these facts and i tell us sized the phrase multiple times that both men were injured and in finding qualified immunity really relied on this this misapprehension of the record the other factors that that really favor our position are the fact that there was a ny one one call that generated a sprint report that the officers were aware of which said that a supervisor was assaulted by a support the officers were aware of this as they as they came to the scene there were at least four eyewitnesses and  probably more that officer francis testified were present at the time she claims that she didn't speak to any of them but they but she does concede that they were present mr aka fellow by all accounts was visibly injured and in fact was being treated by e m s at the time of his arrest mr king and this is a this is an important factor the size differential is important mr king is is about six foot two and two hundred fifty pounds mr rockefeller's five three and  hundred thirty pounds there are a lot of feisty people who are small that's fair judge but it is a factor in in this analysis and i would i would urge the court to adopt the reasoning in a called cool versus burgess that is one seventy three f third six forty six i have referred to it in my brief it is virtually on all fours factually and legally with this case the in that case there was an cop now he's arresting the victim that's exactly right just there was no fight that's the most important part of this thing and that's the most objectionable part of the decision is it is that the district court repeatedly characterizes this confrontation as a fight and the way it at least in context the way it is presented is that there were two men who got into a fist fight with each other as if at a bar or in a boxing match that's not the case here and match is consent so let's keep to the bar you know that's that's exactly the point judge there was there was there's not mutual combat this is a supervisor is standing by in his desk who is half the size of his assailant and has grabbed around the neck and dragged over the desk in a room full of people now the other thing that makes the arrest so baffling is that there were plenty of people who saw this is happen in front of a roomful of people and according to francis she didn't talk to any of them according to my client there was at least one person who said no look the the big guy assaulted the little man so you know under those facts i believe that the arrest has to be found to be objective qualified immunity is inappropriate here just one quick point i'd like to take issue with a couple things in the brief that i didn't i didn't emphasize enough in my reply brief  nine is the characterization of the assailant walter king as the quote putative victim again under the the five or six factors that i mentioned the idea that the assailant in this case is a victim is just not borne out by any factual record again the characterization of this being a fight as in a mutual combat is is iran yes and and finally i think there was a confrontation and we grabbed each other and he was asked straight out did you say anything else and i said you arrest somebody right so i disagree with that judge when when my client's being direct action the tug at the airport for the context we're talking about is hostile well let's take what's in the record my client is standing behind his desk he is grabbed by the collar of his shirt by a man twice his size he is then dragged over that desk at some point for the police i just have a couple of points first first i want to stress that again as the focus of the opponent's brief seems to be this is not a case governed by tolan which he seems to want to argue which is that the district court here made determinations of facts in total and that was about a scene that was observed by the officer and the supreme court said in that case if there are different accounts and what the officer saw you don't resolve it on summary judgment that's correct we don't dispute that this is a situation where two different people gave conflicting accounts to an officer who arrived on scene and so in that case the district court was correct to say there are two different conflicting accounts at the end of the day the police officer made the reasonable decision to basically credit both accounts to the extent possible and arrested both men i think it's crucially important to remember your honour's that this is a case where there is no dispute that there was a physical incident if the doesn't want to use fight that's fine we can say physical incident so the key differential here was that one person claimed and in taking the lights and favorable to him so supposedly four other people testified or hand handwritten accounts supporting his account but you have another person another putin victim who said the fight was actually mutual so this is not a case where the officer had any obligation to investigate any further and in fact had the officer conducted any investigation which the appellant seems to describe you would still be left with two conflicting accounts this court that there was are you probable cause that any different than saying that there's a reasonable officer make inquiry of eyewitnesses all standing around waiting to talk to her well again the district that's the crux of what you have certain say you know you come in and you don't know what happened as a cop because you're not there on the other hand they just are filling the room and you know ask anybody is that something that he that any reasonable police officer would do well so i just want to explain that act like you know i understand your honor so the officer did testify that she did not speak to anybody else and no one else volunteered to speak to her but the usually don't wait for somebody to volunteer they don't hesitate and a bashful yes your honor but first of all there's no obligation to but second of all this the district court below took it as was the aggressor the other one said the opposite is true you said the officers had no obligation to ask anybody else before arresting one of these two and i'm just asking you to clarify that for me because i don't understand that if i said that i think i meant to say that the officers are not required to do further investigation once they have probable cause and in this case they did she spoke to both  here so this was a situation where both men claimed there was no dispute certainly from between their accounts that there was a physical incident and so the officer made the decision to arrest both men because she had prob right so the visibility of the injury was an error that was made by the court and on mr king so so if we can so we're moving on from the fact that we accept the fact that he was not visibly injured we were there forced to accept counsel's proposition that mr king is a putative victim under the surface of circumstances based soley on his apparent complaints that he was the victim of an assault again the facts in the record make this proposition of sirte he is twice the size of his victim he is not visibly injured and there are witnesses and i think most importantly if this can be considered objective there's a radio run and then on that isn't the record and for that examination you'll see that there is what's called a c b recall back from the car to dispatch asking to call back the nine one one caller for clarification the clarification says supervisor assaulted by support so you know in the totality of the circumstances the idea that there is probable cause to arrest mr rockefeller the victim is is is not a reasonable you both decision