civil procedure eighty three a which authorizes district courts to quote adopt in a man rules governing the practice that's what happened here is that the western district of missouri has a rule fifty six point one saying the move must mandatory must respond to the nonmoving party statement of additional facts and if they fail to refuse to choose not to then there's consequences for that local rule fifty six point one  one hundred forty nine words no reference whatsoever not one word to all of those things that were submitted me being a lifelong self doubter i thought my god did i fail to submit them i mean if the united states says nothing about them if the district court through the man's true judge makes no reference whatsoever what happened why look not found that i did submit them and although i did what the magistrate said was a page fo has not provided any argument or evidence which dispute any of the facts listed below a page eighteen the undisputed facts set forth by defendant and so when i look at that situation and also on fifty two paragraphs of theirs i had various objections the court says page four this court will not address any of the general jackson's and the united states of america's first response is that's harmless  the whole thing seemed very curious past harmless or the only other explanation from the defense excuse me from the united states appears in the one hundred sixty one words in footnote nineteen on page yet discretion can force these rules so we look at the tramp case there was a claim there about possible non application rules the court found that there was reference made to the filing and that many facts they're in were throughout the analysis that's not what happened here assume facts not denied in the opposition let's let's say you know we kind of read what you've written and the question i've got is this is that i think the assertions likely to be made that the factual submissions that you made were duplicative and that they were repetitive and that they had previously been considered and not substantially different than the facts that had been addressed and and presented earlier and i'm sure you disagree with that and i would like you to explain why because i think the building that arguments important you are i believe that in briefing we lawyers with law degrees have a responsibility to say something like that had that been the government's position they had the obligation to say that to the district court through the magistrate judge they never said that and i recognize that an eight circuit judge as you just did can astutely take that position your right your honor i would disagree with very respectfully they can take that position they have an obligation if they're if they're not going to respond or not follow rules they have an obligation to say here's the reason why they instead make no reference whatsoever to it at all and in that they say that stands for the proposition that you don't have the federal courts have her widely that's not what it was it said then that one case where they may assume they chose not to assume but may assume is not to standard here brandon versus for state court cause or action and of course what my desire is to have three judges from the dakotas in arkansas ought to say to the magistrate judge in kansas city there's missouri law here there's missouri law that needs to be followed there's missouri law with different points in them and different standards and the situation is worse three years away from or by sentinel in missouri during all those years there's been carefully developed case  that if there's a constitutional ruling you just kind of disregard what the states say about the states have principals and one of those in missouri under false arrest the first of the four is that in this mistaken identity situation here's what happens under false arrest law in missouri a defendant is charged with knowing all the facts he could taint by due diligence before making the arrest and had a duty to use all reasonable means to avoid a mistake of identity and what was the situation that should have been taken into account that was it due diligence matter that they needed to prove if they wanted to go out on that affirmative defense on the basis of a summary judgment vinal wilson five eleven two hundred stewart right foot six foot five to eighty and in terms of their due diligence their confidential source was sitting right there in that room on the videotape you can see the marshals coming in not checking with anybody they signal is out him is that him well he's wearing number twenty three which happens to be michael jordan's number kind of a popular number among basketball players and so less all the help is it due diligence when you have a crux imprisonment i believe with kind of narrow debt to dealing with the situation where they held him for another twenty minutes he's taken out of the gymnasium they're shown h re orient themselves now if you look at the video they're not going over that car in fact including to the evidence which we submitted they're standing around laughing about this man for twenty minutes in there and also in contrast to some of the others though as we heard about earlier today stuart wright is not a drug dealer is not somebody having problems throughout his life behaves i believe and when there's no f bombs dropped by this guy there's no part of the evidence he is in that car with his hands behind him for twenty minutes while they're laughing outside i suggest that this case is not one for there to be something that remotely sounds like there's a new twenty minute standard to reorient yourselves counsel in the previous opinion from this case it was noted that the marshals discovered that right had two outstanding warrants that we held that that would provide separate independent basis for continued detention and the the evidence in fact in the record is your honor that that was discovered at the end just before they released him it was nothing that the government even contended that that's something that they were holding him on it has never been contended that the twenty minutes they had there is well it's a traffic warrants that's what they were doing and so the evidence is that really matter if they're warrants outstanding just because they are officer didn't  if they were just shepherds or had an effective more of an objective standard than then this subjective kind of thing that you're talking about i believe that for us to x post facto say where you get the the matter of the district court said they didn't show a jury purpose which they had to show now abuse of process is not anything that had been decided previously in any of the prior rulings culture emotive is not a  or to use him to try and find out where vinyl wilson is and i urge this court not to think about putting some ruling together that would say it's ok to use him for twenty minutes and to hold him so he can since somebody to question him about where somebody else think cases before this court for the third time would be unusually difficult or complex but in fact we believe this is not i will try to get to the four counts that were before the court quickly but i do want to address one point that my good friend mr kurtz raised and that was respect to the evidence that he presented in response or summary judgment motion and the contention that the united states did not address or at all make any mention of the evidence to the district court to the contrary i would direct the court to appendix volume eight page twelve forty six where in our reply suggestions we specifically talked about the evidence that mr kurtz submitted but we also know to the court that that evidence did nothing to change the analysis that's right the actions of shawn franklin and chris wallace were objective lee result under the circumstances first time was important in this case is that in these three pieces of evidence these two affidavits and the one expert report the record before the district court was identical with respect to the summary judgment c action however it is perfectly clear that many states missouri being among them have fashioned their rules of tort and negligence to allow the same sort of breathing space same sort of reasoning mistakes there are inherent within qualified immunity analysis in this particular case we argued to the district court based on the same record that was in front of the court with respect to be with respect to the false arrest and the false imprisonment that these actions were legally justified we argued with respect to abuse of process that there was no evidence of all to or motive and with respect to assault and battery we argued that the force that was used was reasonable we believe this is consistent not only with the prior ruling of the district court but of this court's opinions with respect to the qualified immunity analysis under b of most particular import in this case and the one and inkscape of all fact is that this incident was videotaped and that fact overwhelms and addresses almost all of the concerns that mr is raised with respect for instance to his expert report if you read the expert report all the experts says is that in those cases where there is passive resistance and the person being arrested is offering no resistance to police then the use of a taser would not be necessary the problem is that is completely contrary to what this court found when they viewed that the same videotape that was also before the district court in the very first right opinion issued by this court indeed this court admonish the district court that it need not accept the non movement's version of facts when the video evidence conspicuous refutes and completely discredits the non movement's version subsequently when this case was on appeal the second time viewing that videotape this court said we must view the facts in the light most favorable to ri but the fact that he did not yield to the marshals when they approached was sufficient evidence for the marshals to have probable cause to believe that wright had committed the crime of resisting arrest our contention is that the additional evidence mr kurtz provided as well as the affidavits that were originally before the district court during the f t c a part of this certainly do set forward a version of facts that is most favorable to mr right and perhaps would lead to a factual dispute but that version of facts is in direct contradiction to the objective evidence that is shown on the video tape indeed if you look at one of the affidavit submitted by one of the  witnesses that mr kurtz wanted to use on the most recent motion for summary judgment one of the witnesses says that is the marshal approached mr wright he raised his hands and tried to surrender before being t lee if those were the facts this would be a much different case if there wasn't a videotape it would perhaps require a fact far to determine whether or not in fact that occurred in this case the videotape demonstrative unquestionably shows that that did not happen this is no different than any other summary judgment case where there are numerous facts that are not material to the ultimate conclusion reached by the court the court may not discus cortney not listening in findings of fact with respect to the local rules we believe those cases that we cited and that mr kurtz talked about today stand for the proposition that the district court has discretion in applying the local rule and the test on appeal is not whether or not the local rule was that here too but whether or not in fact summary judgment was properly entered on the record before the district court we believe in this case th what happened with respect to false arrest and false imprisonment we believe that the substantial evidence a stab at least as a matter of law that the officers made a reasonable mistake of identity with respect to mr wright and they reason to believe it was a violent dangerous felon named vinal wilson when they arrested him on the court but even if the court is concerned that there are factual disputes there what is clear from the court's own ruling in the prior case is that these officers had reasonable and probable cause scuse me to believe that the person they were arresting was resisting arrest they gave them an independent with respect to any claim that perhaps the detention lasted an unreasonable among amount of time once again this court under the bevan's case viewing the facts most favorably to mr right concluded that the detention itself for twenty minutes was reasonable under all the circumstances once again we're not arguing that a finding of qualified immunity necessarily in every case invalidates an underlying to respect to the underlying tort and in this case that provided legal justification for both the arrest and the subsequent detention of mr wright similarly with respect to abuse of process there is no evidence was none presented during the summary judgment pleadings and there is none before this court that these officers walked in with an ulterior motive there is no evidence that they used process an inappropriate way and finally with respect to assault and battery once again missouri tort law similar to what we've seen qualified immunity has provided law enforcement officers with a certain amount of breathing space everyone understands that part of the job of a law enforcement officer on occasion requires them to commit what would otherwise be in polite society an assault and battery that's unavoidable and what the courts just said is we're going to not find that there is an assault tort first of all to battery if the law enforcement privilege applies if the touching was privileged and that boils down to essentially the same test we have for qualified immunity use more force than was reasonably necessary in this case once again we believe as a matter of law the evidence or stablished that these officers believe that this was vinyl wilson who was on the floor that he was a dangerous felon that he was wanted that there was a chance that there were others in the gym who were prostitutes supporters of him but more importantly once again even if the court has concerns about whether or not summary judgment was proper with respect to mistaken identity what is clear is that the videotape of stablish is that the person being arrested resisted arrest we would argue that under the law they use no more force than was really necessary to apprehend mr right given that he was resisting arrest we think this case obviously has been before this court now a third time but we do think th is a straightforward case it's a straightforward application of summary judgment mr kurtz is quite eloquent in his defense of mr wright and often argues in his pleadings that mr wright is entitled  having one's day in court does not mean for every person who believes they were damaged that they get a trial before a fact finder the bevins claims that were determined were not determined in the dead of night the summary judgment motion that was decided by the district court was not done in a star chamber proceedings is all occurred in open court judges have heard arguments from both parties there was an extended period of time when which mr right  could have conducted discovery in the united states with respect to his claims he's had his day in court we reduced spectrally requests that based on the record that was before the district court consistent with the prior rulings of this court consistent with the parameters of missouri tort law that this court affirmed the judgment in or below by the district court very well apparently we have no questions thank you for your honor thank you  your honour's matter of not following local rules is more frequently something that comes up with schmoes like me and stewart right that's the type of people that come into court not knowing what the rules are not doing what the united states of america to ask you in minus in my  to create a breathing space for them to say we don't have to follow the rules and it doesn't make any difference and they're asking for a somewhat dangerous precedent i believe something that says that's ok that's ok thanks for the united states of america to not follow the rules  wright was entitled to have them do that in this case the first time this case came up it was something where the decision was of this circuit to send it back to the magistrate judge because of a dissatisfaction w judge had done i suggest to you we're back at a position very similar to that in which the magistrate judge needs to know if you have a party who has it within them to come to court and not follow your local rules and not provide the other side responses to their undisputed facts a couple things about that one you need to enforce against them and secondly you need to say something as the trial judge on that on the matter of the videotape and mr ray read you a thing  someone it indicated that raised hands seeking to surrender that is the sort of information that comes about through hearing people out and for having somebody get the opportunity to say something because this was a videotape not an audiotape and  my suggestion is that with the different elements that exist in state law that should be something which would go with the remains well and an abuse of process one more time you hear about your motive it was treated as s thank you for the argument the case is now submitted and we will take it under consideration