deserves no deference because it was not consistent with the rule for summary judgment in that number one the evidence was not in any way used in the light most favorable to the established in the united states and with respect to the issue of a fourth force without a reason is under reason that i think that is a well established fact as well and the court having shifted that burden that you're aware of but i think that is a that's the core of your argument is to the contrary no i don't think so because this is you take tracy white and we have babies this in a restaurant and a mag down there not with anybody they're told to leave a restaurant the police cannot create the situation and so you there's no way to have an unlawful assembly if you take people out of a restaurant that they left the restaurant and then the incident and then the thing you complained about develop by the owner the owner was not concerned that's the qualified immunity perspective their perspective well but it has to be reasonable but yes but from their perspective you're well i understand that but you have to have facts and the facts here were that it was three thirty in the afternoon there was no situation that was going on the owner did not believe that there was any need to close he would not have closed but for the fact that the police told him to close and then one once they did close the restaurant the police then ordered mr davis and miss white to move on and then to move on and then to move on they for any purpose they were eating food there was nothing about their presence in the restaurant that any reasonable person could suggest had to do alas you're saying that if your happened to be eating in a restaurant and the police decide to close the restaurant then that constitutes in a sense i don't understand the facts i thought they were i thought that th point was say i'm being moved someplace where i don't know where i'm going my husband is supposed to pick me up at the maid donal's what am i supposed to do if you keep moving me she doesn't have a phone this thing w as i understand it the sudden involving michael brown occurred on august ninth right correct and these arrests occurred on august thirteenth four days later you know that there were the arrests took place between over several violence and burning of buildings at night yes sir so how can you say it would be a reasonable for the police to say we want to get ahead of the situation that's what's you know we want to protect the mcdonald's what's empty the store get people out of the area and be proactive as opposed to reactive to the situation that occurred for two straight or three straight nights where we're not arguing about whether or not the police had the right to close the men down over the objection of the own that's not the issue what will you just said it was you just said you can't force somebody to leave a restaurant who's just sitting there peacefully eating their hamburger i thought that was your whole argument well what i said was the second part of this you can't force somebody to leave a restaurant and then when they leave a restaurant accuse them of assembling with of us that's what i said that in that it wasn't that the accused him they wanted everybody out of the area correct it's not you know what they want to be honest because what they said after not being able to demonstrate any of the facts that would suggest that was a day failed to obey directed that they not interfere with police while they were trying to move a truck so the reasoning behind this changed repeatedly over the course of events and that is the entire point that we've been trying to make this was simply just like this is move on move on you have an unconstitutional policy that says that the police can just come in and say to anybody move on move on of those folks don't move or even if they were not assemble even what they were not doing anything then they can be arrested for failure to disperse but in this particular case with white and davis you have a situation where the police created the situation where they were with other people they were not with anyone well then what's what what is wrong with with i guess i'm losing are what is wrong with saying to anybody who is in the area we have to stop we have decided to proactively clear the area so that we don't have a recurrence what of what is occurred the last three nights everybody gets out whether you're a protester or whether you're a demonstrator whether you just happen to be there eating your hamburger is are you saying that's unconstitutional to do that what i'm saying is that there's no reasonable basis to believe that these people have been involved in an unlawful assembly that i don't think that the police have the right simply because they are the police to have people move on i mean there is a liberty interest there's a bomb threat an airport they can there that is a that's a different situation you know why didn't one if i had a bomb threat of active there they're guarding against obviously if we had been talking about night and if we had been talking about a situation where a crowd had been gathering at night then that might be six different but if you're talking about a situation where there's nobody on the street is in the middle avenue or it's three thirty four o'clock and people are sitting in a magnanimous having a lunch that does not provide a reasonable basis for the police police to ignore the constitutional rights of those individual their liberty interest to sit and enjoy a meal and in this particular case there is nothing there's no threat there's no threat of a threat there's no suggestion of a threat  simply you want them to do what you want them to do and this became spain did it it is not that they refused to move they did move and move again and move again they arrest it because they didn't move they were arrested because they ask why and no court has ever said that an individual can be arrested for questioning the constitutionality of your actions they were never arrested because they didn't move and back the mine a child was arrested because after they arrested his mother he said i don't have anywhere to go and so he was arrested we have not gotten to that place i hope in this country where that is looked upon as lawful conduct lot of police some because they want to be proactive with regard to no specific threat a crime and yet the trial court says that because the officers had qualified immunity to stop him that his claim should be dismissed well that that is totally inconsistent the one that continued to advance toward to scare me he says he did not he says he stopped one of the officers said that he was told to stop with the radio rather show that part so he so he did those that are not qualified immunity told to stop they all testified that they did not see a weapon they all testified that several of them testified they could see one pump some testified they could see two palm one said he had a phone in his hand they all said that none of them believed that he was armed that is why they use non lethal weapons and they are did you identify them from the back absolutely jackson he had been a fine himself he testified that he shot him three times and he particularly holding his head under the water it's both if you don't have a reasonable basis to stop it but even if you did you don't get to use force against an individual just because and the fact that you happen to be approaching a police officer with your hands up doesn't give you the right to shoot somebody three times and it certainly doesn't give you the right to hold their head under water and then beat them once you bring them to the sidewalk and the video does show that you're on and you certainly do not have the right mace the person for no apparent reason when all he's saying to you is i was simply trying to go home the facts in this case was that he was not associated with anybody he took the bus to go check on the well being of his mother who happened to live in that neighborhood he followed the police directions in the manner in which he was to travel and the route in which he was to travel he then encounters another group of police of them and then they beat him there's no case law that says that's ok there's no case law federal court federal circuit supreme court even state law that says individual eating there were reporters in the restaurant there were people who did not know each other they were not a similar leading in the restaurant were or were the target of the close of the situation but this there was no situation again where so many you are there but the facts are you answer my question that the supreme court is irrelevant no sir that's not what i say what i said was they just said creating the situation we don't focus you're subject to arrest people because they are if you would take what you just said to his logical conclusion that would mean that somebody who was walking down the street and they happened to be six people over in the corner of a parking lot who have  engaged in an unlawful assembly if you're walking down the street then you too can be arrested because you're in the vicinity if i don't think that you are right if you refuse to command but not just because you're there i mean that would suspending the constitution on his head and i think that the supreme court has said has dealt with the issue we cannot look at the constitution and view it as a document that does not take into account the common sense of the situation and the entirety and entirety of the situation may please accord it first is a distinct honor for me to be here i'm my cues i represent hope i do well for the people i represent who are being sued in their individual capacity and i think it's important to know their name since they're being sued individually terrence mccoy michael mckean and derrick jackson joe patterson aaron vincent william bates nicholas payne daniel hill antonio valentine and sergeant david ryan i feel strongly about all of them feel strongly for the chief john bell martin said and i'm also represents st louis county i hope i do well for all of them and for the court below district court allow me to given ok so can you answer my question yes you want me to go through each of them are excess force defendants is the question ok on tracy white and and we in davi just bang bang bang st charles county police officers are the ones who handcuffed tracy wired so in that none of the st louis county police officers touched as to william matthews detective derek jackson is the one who shot the less lethal weapon three times and and then after that there were two officers vinson and bates who went down into the creek after after mr matthews was shot with less lethal in the in the stomach in the legs  oh that was joe patterson he he is he one of your yes joe patterson it is not and it was not denied it was said it's not material of that he used the one one short sport of mace and then and and it was a guy named matt burns who is not a defendant he's a detective but for some reason that we've answered  birds was holding him down and then you know so but so it's only job patterson who used to me that when it burns held him down so he's in excess force to know he's not  tells you that their movement bears initial responsibility and and then the nine movement most respond by submitting evidentiary materials and you have to look at the record of the hall and their you know supported by the record you know our record is properly supported it we had five hundred fifty facts each one was accurately side each one showed of probable cause for the material that rocks and bottles were and even a mile a tough cocktail had been thrown he did not deny he says my mediately before he was ordered to disperse or resist resist the night before no no this is afraid so he did not deny that there is smoke and deer tear gas deployed after numerous announcements he admits he was walking towards the police officers are wearing military uniforms that women counsel just so he admits he's walking towards a line of police officers who were in military uniforms and as darkies walked through tear gas paragraphs one twelve and one thirteen he did not deny but he said it is not material that as the police were despite dispersing the crowd northbound the merge from those small heading southbound paragraph one fifty facts he did not deny but said it is not material that pain and patterson dangerous night he he he he admitted he was he saw the police he knew the police were down there and he went through the tear gas and smoke and you know they're assuming they have probable cause to arrest and assuming they even have probable cause to use not lethal force with the bin bank what about his allegations that once he fell under this roof ravine with water that they held his head under the other of those water then beat him on conscious injuries are all explained by the where he was hit with the beanbag rounds and stomach is arms and his legs and then he said he fell into the ravine and hit his head on concrete and in with what he said well and i think that's your strongest argument is that the medical examination and he was he was released that night and went to not seek any further medical attention as i understand yes although so the medical reports are not consistent with a wild law of violence and he claims he was perpetrated upon but does that enough to get you over summary judgment when he very explicitly says he was being well he  and contrary to what mr landmark just said the video didn't show any beat at all and you know the police didn't know they were being videoed it was some st charles county paramedic well people everyone discuss what they discussed in their depositions what the video shows well but they're paradigms of dispute mr blatter says it shows one thing you say show something else i guess probably the best thing for us to do so  intake exam the nurse where the patient reported no limitation at this time patient does not require special here at this time the current chief complaint is recurrent lumbar pain for wh support counsel gentlemen i want to touch on something you said judge logan with respect to the last five ten years believe one of the cases that the supreme court decided in january white versus paul it says that you cannot look qualified immunity from a general point of view there are unique circumstances that have to be taken into account here actually judges loken and judge will lloyd you said on a panel in new versus denver that discussed the as you mentioned earlier it is the perception of the officers which you look at when you are trying to determine whether there is arguable probable cause to arrest someone with that to them or want to believe that is the marijuana leaf case yes judge here it's august eleventh of two thousand and fourteen just two days after the shooting death of michael brown approximately two and a half weeks before this lawsuit was filed these three maryland heights officers who were signs to help in a situation that is obviously ten and i'll one thing you did point to you is whether the video is part of the record it is this video is a part of the record i believe it's a cd that we label this supplemental appendix one thirty and if you watch that video it will tell you what you need to know about arguable that you'll see there was shot by the man coleman if you play it and it has audio you will see what i'm burning a verse of st paul if you remember has profanities there was taunting of the officers and there was a crowd that was gathered and a judge welcome pointed out the statute in missouri understood five seven five seventy four zero six zero only requires that you be present at the scene of an unlawful assembly you do not have to be one of the six members for a charge a failure to disperse that is important here these three officers come on a scene with these two aggravated individuals and there is at least arguable probable cause that they are refusing to leave i think anyone will agree they are not leaving and that video in fact they tried to go out when they were placed after they are placed under arrest they try to go out the back and the officer said it's too late you're under arrest so the video will also have evidence that mr green said stop throwing rocks pro it is clear at least firearm yeah i believe they all did but none of the less lethal and that was what the alleged it force was on less lethal on the county officers from the video you can see here in the street and they're firing but they weren't sued they were unable the plaintiffs were unable to identify not shoot him because he perceived threat he shot him because he said he didn't comply with the police directive to stop detective vinson testified that detective patterson told matthew to stop which he did and then jackson shot him three times so the testimony in this case is not just based upon matthew saying that he complied there was a detective who also said that he com one of the things that i found particularly troubling is that the a polies claim that nobody could identify well the facts in this case  the officer conceal their identity the officers had on manse the office third were told by the police chief to remove their name badges he admits that he edits then he told them to remove their name badges because of the situation at hand and then to suggest because you can't identify the police officer although we identified the police officers through subsequent investigation what you suggest because the plaintiffs could not identify the police officers w directed to conceal their identity and who in fact did conceal their identity is outrageous police officers don't escape liability because they were they are able to fool the plaintiff's bar about their identity you can't escape liability by removing your name tag and the problem here is that this was a policy officers being granted qualified immunity which is incredibly inconsistent with the pickable that there's no law in the united states that allows for a claim summary of the issues you did you did appeal that issue yes or yes thank your honor thank you