yes your honor are you ready to see yes if it may please the court mr berra in beginning this argument today i wanted to pick which topic we should want to address st and i wanted to start with the  prong of the qualified immunity test i want to start with and that is whether or not the constitutional rule was can clearly established at the time the offense back in two thousand and twelve there's two reasons i want to address that st st one is i'm sure the court is well aware this is a matter of public important fact as i was just scrolling through facebook to start this argument i ran across an article from the atlantic published today on qualified immunity but other the other reason i want to bring that up is because it's a constantly evolving area of law there's been lots of litigation and since we filed our briefs there have been excessive force rulings  sherif and it it helps shed some light on mr mick reynolds case as you know mr make reynolds was taken down violently by two independence missouri police officers and it resulted in very serious injuries mr mick reynolds at the time that he was taken down was in fact compliant he had gotten on his knees he had put his hands in the air he had responded to the officers commands he had asked for additional instruction from the officers when it wasn't clear and the response was to slam him into the pavement so hard by both officers that it broke his jaw completely in half but in makkah treasure the versus  of what this court said and what this court recognized in fact is that there is a very long history of case law on in this circuit that says that body slams and similar techniques when used  also look at again are the rogers lambert versus the city of two mosques around the city of golden valley and carroll of the stores s t o r z i didn't and and again i'm not confident that this is even an exhaustive list exhaustive list there are in the anomaly of excessive force cases we have weapons cases things that look like wrongful death but there are a lot of  takedown cases individuals who are taken down when they are arrested and result in injury in this has been subject of litigation for a long period of time on them so we can find a lot of cases dealing with that particular topic on the books but the officers were aware and certainly would have been aware in the district court recognized at the time that they were aware that a hard takedown for somebody who's not resisting would in fact violate a clearly established right you're not allowed to  use that level of violence to cause catastrophic injuries to bring somebody into custody when they're not resisting there's no physical force they're not a threat they're suspected of a non injurious crime and so the officers are well aware at the time that this was clearly established law as your position is it your position that there are no disputed facts require trial in order to to actually are disputed facts on the principal facts that are in dispute is whether or not mr mick reynolds complied timely to the officers instructions on in whether or not he responded quickly enough there's also a disputed fact as to the location of his hands whether the officers announced that they were police officers and perhaps to some extent not discussed in this the summary judgment order  extent of the role that officer genteel played in the takedown he was the one who wrote his reports that he participated in the push versus with the identity of the officer matter when i believe there information in the record that the plaintiff was aware at the time he went outside the offices were prison i think that's disputed i'm not i'm not confident from the nine hundred and eleven call that you could draw that factual conclusion but listen that for the sake of argument that that's not in dispute that his knowledge was that that he was aware that they were police officers is conduct was that he was compliant with them he may have been slow to respond while he had process what exactly was going on but we can hear from the audio recording of the event that his conduct happened within a matter of seconds and then receiving the instruction and certainly that can be inferred from physical if i said nonviolent i may have misspoke i said non injurious i think but she was not there is not an allegation coming in that there was an injury related event there was certainly an allegation of a spurt disturbance and will admit to that  but i believe that the nine hundred and eleven call came in that no there were no reports of injuries and no reports of weapons so it was that a distinction then between that type of offense and the allegations of what happened in the course of that it is relevant to the analysis itself as one of the factors that the court considers that we bring that up but i think that the nature of that crime being a domestic assault call that factor diminished and probably completely evaporated at the time that mr mick reynolds complied with the officers once he stopped when the terms stop got on his knees when they told him to get down put his hands in the air the the degree of threat that may have been present as a result of the initial information on the call be it a domestic disturbance at all is completely evaporated he was compliant and submitting to the officers authority how far away from the house was he at that point  unfortunately should've submitted a map but the sidewalk that we mention actually runs directly in front of the house not away from the house it runs to a driveway that is next to the house on the side of it so he was in front of the house standing on the driveway between two cars that were part front to back canter so how was not he was not some distance away he was in front of him i'm sorry or well i was dizzy when he said not far away has some distance away i'm still having a hard time trying to figure out you know how far we're really talking about imagine a suburban house with just a simple sidewalk coming out of the front door wrapping around the house to a driveway on the side and then around to the back he was at the is that when we look at this particular case because of mr mcreynolds behavior viewed in like the light most favorable to mr mitnik ronald's has him complying with the officers on his not resisting he's not fleeing he's responding to their commands and he puts himself in a posture that would let any objective lead a reasonable officer know that he was no longer a threat he caught and sneezing he put his hands in the air that's what people maybe there will wasn't expressly complied with that seems to move on from there can you give us your assessment of that or your understanding either from what both from this particular case but if you can help us in how those kind of matters are normally handled in your district chair it's really it's not a subject that's part of the court it's not an issue on appeal it's not subject to a cross appeal it wasn't the basis of the court's ruling so if the district court had said you know that summary judgment is going to be granted in favor of the defendants because the plaintiffs response didn't meet a strict pleading requirement in a local rule that would be a big issue want to appeal but the court didn't do that the court found and it certainly facts were listed in contested in the plaintiff's response but the court didn't do that the court's ruling was based on the facts as they were pledged by the parties and as they were supported by the record the ruling was a standard summary judgment ruling that was factual analysis viz of the excessive force and qualified immunity analysis primarily if it was something that the defendants believe that they were aggrieved by they should they could have cross appealed but that didn't happen it's not the basis of it it was something that was a part of the court's order so saying now that it should be the plaintiff's pleadings should be disregarded because it  honors i'd like to start with the statement by counsel regarding the crimes that he believes looks usually the cases that he believes put these on officers on notice of their conduct as well as the kelsey decision that came out of the a circuit i will i will consent or i will agree that mr johnson has come up with a number of cases in which he attempts to decision that came out of the th circuit that was handed down on twenty nine thousand dollars and that that that it was after the events of this case and i think that's very significant in evaluating the and that was what i would call the seriousness of the underlying crime and what these off the seriousness diminished at all because you're now one floor does that diminish your concern about the the nature of the offense at all judge erickson i would take the position that while i understand your question the officers were aware of that at the time they w domestic disturbance has escalated the female on the phone talks about how now mr johnson excuse me mr magoo reynolds is intoxicated and becoming very violent and that's what the officers and i think that's very significant because we're off asking these officers to assess a situation in a small amount of time based upon what the nine hundred and eleven dispatcher has told them  if they're if if in fact if you take the facts in the light most favorable to mr macdonald and you say that he had his hands up he was getting down on the ground and was was complying with all of the orders from the officers does that and does that still give them does that still give an officer there or the case law the opportunity to use the take of force that was here in other words there's nothing complying to bias actions can you rely entirely on the potential previously violent acts inside the house to justify the force judge or i think you have to get into steps i think you have to evaluate the nature of the call and the violent conduct that was being communicated to them and i also think you have to to assess the potential danger that this subject posed with regards to a threat of scanning a threat of not paying attention to the officers and the threat of still being dangerous to the officers adding this is mr berra mr byrne to follow up on hands raised krauts means he has stopped he is no longer moving away from the offices his hands in the air indicate submission what is it is i understand th supports police conduct applying this kind of force when compliance is when there is there is compliance is not active resistance there is compliance but not quick enough compliance abhi the st one to admit i can't find a case on all fours he's talking about quick or quicker compliance however my response to that would be even though he was complying or responding she still posed a threat to those officers and it's the reasonable ness of the officer not the reasonable most of the person after the fact as well will  look at the total time provocateurs perspective you're looking at it can't be more than two seconds that takes place you know and then there's this packet with great force you know and we could talk about compliance low compliance whatever but we're supposed to look at the facts in the late most favorable to the nonmoving party and at that point mr burt reynolds as we see it is on his knees with his hands in the air and someone says under stomach get under stomach he says hum or what i can't remember exactly when he makes some kind of any group and then he is tackled with great force and it all happens in a nd or two you know it why is that reasonable judge i have to keep going back to the concern that the officer schmidly it about this gentleman still being a flight concern and still being a threat concern and we have to put it the perspective of how the officer perceives it and that was a concern here and that's why he did what he did and i believe that it was reasonable under the circumstances as judge s made the officers believe he was a flight so i think i understand your position about the danger because of the nature of the domestic call but what about the information that the officers were given that made them believe he was a flight risk i'm not sure it's necessarily that the information that was given but what they saw him do at the scene when he starts coming down that sidewalk and they have to drive way  he he starts to make it term starts to turn his body and i think that's the significance of the flight risk that the officers were concerned i would guess that is that an undisputed facts then that w because they step on the record that we have right now there's nothing that contradicts that there's no evidence from mr mick reynolds or a rd party that contradicts and i think the claim against officer genteel as judged sax pointed out fails under the qualified immunity and also because he is not part and parcel of the overall conduct engaged in by mr or officer schmidly and therefore i think the decision to rule in officer genteelest favor and remove him from the case take place who also sits in fuel arrived and provided the final push over or did he make contact with the plaintiff at all we take the position that officer gen the only contact that officer genteel had judge but i think that the evidence is to the contrary i don't believe that officer genteel tackled the plaintiff and i think to the extent that judge s agree with you i'm not going to argue with you in that context the last thing i would tell you in the context of the mill claim is that we believe that obviously if there's no excessive force there's no but i think more importantly is the ruling gap judge sachs made with someone else client because rather than could clued up there was no excessive force he went one step further and the step further that he made d was that the plaintiff failed to identify any evidence to the suggest that the city had a policy or custom which may have authorized the use of unconstitutional excessive force or any evidence that the city failed t train its officers in the appropriate use of force during the arrest so i believe that this court can determine that there is no male claim against the city by reason that neither schmidly or genteel engaged in excessive force or for the reason found on page fourteen of judge saxes order and i think that's clearly permissible for judge sachs to find a reason a legally justified reason for defeating the is for clarification since there is no cross appeal on the issue of the court's handling of the local rule is is there any issue before us with respect to the court ruling it in resolving the summary judgment without consideration of the local rule without applying script legal group judge i don't think unfortunately i don't think the local rule argument applies and i don't think it applies for this reason i don't think the judge sachs adequately addressed that issue in the body of this order but even if he head she gave the also the benefit of doubt and the facts in his fate and i think from a practical standpoint that resolves for the short term the issue of whether or not mr barrett started off talking a bit about kelsey v herbs in which was the principal case that the district court relied on we certainly don't think that it analogous to the plaintiffs in kelsey was noncompliant had pulled has long term lasting injuries as a result of the amount of force that was used but i don't think even if that is most closely analogous case i don't necessarily think that this court has to find a precise case on point  if we look at taylor v rio hasse which was a perk area of opinion that was issued by the us supreme court on november nd that was an instance where an inmate had been held in deplorably filthy conditions in a jail and there were no cases on point that would have told the jailers that keeping somebody in a feces laden cell for six days unconstitutional but the misconduct was so so awful so disgusting that the court said no let's remember that you know that the case law requiring the viewing of of her requiring us to look at prior precedent doesn't mean that we have to have something that is down to the molecule exactly the same in a prior case that doesn't need to happen in fact based on taylor v rio haas the court just recently  back a case i think it was out of the night circuit just remanded a case because of that because of the ruling and taylor you realize i think that case was mccoy