plaintiffs were injured in the process and that they knew immediately that there would be seeking a legal remedy for the injuries that they suffered they requested for the identities of these individuals that executed the search warrants and the officers refused to give them this was at the time of the reign as opposed to ten fifteen minutes later when did the statement was a statement made that we our team a lot of it was right after they had their they had they executed the search warrant and they were completing the paperwork right in front of the plaintiffs the plaintiffs request that that information all of the officers and the officers get gave that information to the plaintiffs directly because there are some allegations that the state local officers were perimeter officers that they did not every one of them we took the deposition of mr higgins who was the leader of the of the team eleven at the time and i asked him look is the specific designation for the officers when they execute execute the search warrants such that you have entry team members and you have perry met a team members and he said no the situation was fluid it depended on the second stance season they made those decisions ad hoc so ok i thought it was my understanding have other break ins rather other raids where the state local individual ages actually were part of the raid that we don't have the paperwork that we were provided that doesn't give us that much of the perry met a team and even more suspicious is the fact that the state two of the state officers and land i believe i know is two of them dead through two out of three remember that they were in the house at but they were as part of well you know and i took extensive testimony both at the depositions and at trial and they testified that they need at the very least five police officers to make entry those five police officers sufficient to secure the home and to do any investigation there needs to be done on the spot so the case for the perry made a team the so called perry made it seem actually coming into the house at the any point seems questionable when you  you already have at least five officers in the house that are capable of securing it so i consider all of the testimony of these officers completely suspicious because they exonerate each other the federal defendants say we didn't do it and they also turn around and say oh by the way we also know that the state police officers didn't do it either because they would always be on the perimeter you know i'm curious i couldn't find in the record did you ever follow a simple iraq atory to the effect of you know identify all the times we just we ran out of time but i thought that the interrupt a tree that we sent was sufficient to elicit the information that we were asking if they were simply saying we were not there they should have just answered well we weren't there that's that's an affirmative my parents brief you will find that we sent we exchanged correspondence with asking them you know who conducted the raid they sent us a letter back and this is part of part of the whole when county even denied completely having their records have first it was only when we filed a freedom of information act lawsuit in state court that they actually came with the documents two years after we started asking for the wayne county identified the d thousand and seven a b c d and e executed a search warrant on these people's homes there was no ambiguity about it and we amended that complaint the plants use we have really diligent in this case i mean they they immediately started when we got to the other positions when the statute of limitations had run that they denied for the first time after three years of seeking these documents that they gave us that they finally denied that there we had the individuals you had these depositions of these unnamed people and they all claim we weren't there they either claimed that the federal agents claimed we weren't there and estate agents said we were on the outside we were in that compound they say no no no they don't know they say on that day the team split and this is really interesting because we actually had a trial i would call it a sham trial but we had won we didn't get to the jury because the judge the district court decided to segregate the issue of liability from the issue of damages and wouldn't let us get past the issue of liability unless we showed someone who would conclusively say these defendants were there this despite the fact that there were some of them were wearing baseball hats that were pulled down really low on the f s u somewhere wearing masks they had made as much at the at their positions and they refused to divulge the identities when the plaintiffs asked for it what did the plaintiffs do wrong they approached a plant a plaintiff's firm that has done police work for twenty five years we started asking for these freedom of information act request immediately if you look at the proofs that we submitted we started asking for eight weeks after the incident occurred they never provided them they never provided them eventually the affidavits and besides warrants that they used as a basis for executing obtaining and executing the search warrants he was able to do that because he was also a wing county employee and  investigation and they actively blocked every attempt that we made to obtain the documents for two years and then when they finally provided they they know wayne county at least knows because they were the ones they took a roll call every morning to  figure out who the offices were going to be working operation now was a three day event my understanding as and as it came out at trial and at the depositions they never knew which offices would show up until roll call in the morning it was a three day event when county arcus traded all of that wayne county organized these people into teams wayne county had intimate knowledge they coordinated the event so we when we started asking for these documents they certainly had  time when when the when the trail was still fresh you had something indicates that that's a policy or an ongoing activity no your honor but we cite a case in my brief that indicates that a toleration of a custom and i do understand that this is one incident but but the fact that they stonewalled us and seem to actively now want any investigation into this would  it right here in front of me i'm sorry but it's in my brief your honor and he states that the fact that they actually that made such active efforts to prevent us from getting to the truth actually does hold them liable  said that i'd like to reserve five minutes for you have five minutes and i done or i do i have more time we actually got some really lovely testimony from them and i think the jury was paying rapt attention to the fact that they were denying that all of these three or four documents written by different individuals that paid them into this incident that the denying all of them it was a shock to us that the judge would essentially decide that the documents were not sufficient in and out their selves to to to establish at least to create a grant it and they did that and he granted it i've never seen the like and i'll admit that i'm you know a lawyer of relatively younger years but i've never seen the like the hostility was palpable we also have the issue of the cost that we're levied against the plaintiffs in this case a motion for summary judgment on their roof fifty six is the same is judged under the same standards as a is able to identify the defendants precisely because they were actively with the identities from the plaintiffs and we said we are relying only on these documents if the trial court was inclined to say that the documents were not enough ostensibly allowing us to get to trial then when we get to the trial the trial court makes the on the spot decision that we weren't even allowed we're going to be allowed to present the issue of liability to the jury unless we had someone who would say subject to some other preference of the court we've allocated it ten minutes for the federal officer defendants i believe one minute for wayne county two minutes for officer pyro one minute for officer land and one minute for officer from the united states attorney's office on behalf of the five federal officers this court should affirm the district court's grant granted judgment as a matter of law and favor the five federal officers although opposing counsel has has made much the suggestion that documents place these officers clearly at the scene that's not the case there is a clear ambiguity in the report that plaintiff's counsel is citing to and then ambiguity in ambiguity doesn't think create a dispute material fact that gets them to the jury no there's not because there's no ambiguity where there's an impossibility so the report that's at issue is putting five people into place that this is a once and that's not physically they could go one block in five minutes after knocking the door down i mean it's physically impossible it is physically impossible officer reed testified at trial that it's physically impossible to conduct a search warrant and then go you know one block away and then repeat the process it's quite is that your problem these are your documents these are not the plaintiffs documents if your documents say as somebody was here and they were at the other location at the same time then you created for yourself a dispute of material fact that gets the point give to the jury so these reports are facts not the five federal officers defendants they of course here on a personal liability claim the documents were authored by another d agent who's not a defendant in this case their d n a document but those d n a documents do suggest a physical possibility which is putting five people in two places at once there's more than that though there's another document joining exhibit sixteen is the original incident report by gak and he says that on june thirteenth two thousand and seven approximately eighteen hundred hours they executed this search warrant on greeley is so that that that's not that's a half hour difference between whole and greeley and officer gad he authored two reports for the warrants executed that day one for greeley and one for a hall officer gak he's report for hall says that the warrants were executed both at the same time at six o'clock so there is a difference in time between the two sets of reports also we've got a genuine issue of material fact do we not i mean one report by the raid on greeley was at five thirty am he says it was at six o'clock the how do we know which one is true the time the exact time is not material what is mcguire always white that you told me the five minutes is immaterial because it makes it impossible they could have done both at the same time  the window in time between reports authored by one author so often i'm sorry agent kraus has a five minute gap which is essentially the same executing warrants at the same time officer  executed at the exact same time all five officers testified that these warrants were executed at the same time there was no one who testified at trial to suggest that these warrants were not executed at exactly or either essentially the same time whether or not the warrants were initiated around five thirty four initiated around six o'clock is not material to whether or not these officers were at another location entirely when and own body broke into the house on greeley did they not there's no question that a warrant was executed on that day really and that officers did make entry into that house as a general matter there are two phases in the execution of a warrant the first is the entry phase and the second is a search face the plaintiffs have been consistent throughout the locations that they're alleged injuries happened during the entry phase not during the search phase and so there's a specific process that's always repeated for the safety of the officers to ensure preservation of evidence there's essentially officers lined up approach the door knock and announce make entry conduct a productive sweep to ensure the safety of the occupants as well as themselves to ensure the preservation of evidence and only after the scene is secured the officers and commence any search and complete any paperwork so how how long do you say that that takes the initial the initial protective sweep certainly that kind of varies by the size of a house and whether or not to notice and crannies for people to hide themselves or evidently assume these were not mcmansion that's correct your honor the trial testimony was that the entirety of a search or the entirety of the execution of a warrant would to take about twenty to forty five minutes i don't it physically impossible that every single testimony it's generally no where there was no evidence right there there was evidence from all five officers about what they were doing and where they were and you just told me it's physically impossible to do this in five minutes but there's no evidence how long it takes there is evidence from officer read that it's physically impossible to do that in five minutes that conclusion without evidence i mean that's that's not a factual  it's a conclusion his his description of what's entailed in the execution of a search warrant walks through the steps an officer will ask you to walk through the steps the other the other thing is you're saying that the timeframe of five thirty five or five o'clock for the whole street house five thirty five really is set in stone it must be accurate but then you're saying well the list of the officers however was totally inaccurate so we accept time that are put down on the documents but not the people that's inconsistent too isn't it if we accept part of the report not the other part of the report your honor i would certainly think that there are serious questions as to both of the the team eleven and he's yes he was a part of team eleven which is the team that came into existence just for the purpose of this three day operation so team eleven is not associated with any specific law enforcement organization rather it's a team but as far as my recollection of any deposition testimony you know that the five federal officers were not in the house until the search the five federal officers were not in the plan is house at all with one exception jeffrey was present in the house during the search portion alone you know he didn't testify that he made any such statement there's certainly no testimony at all that any of these five had a loft has refused to provide their identity and deed when they took the stan explained what they would have done had they been asked they were another location they were never asked by the planets because they weren't there to be one of the player says white i recognize his voice yes and carolyn really said she recognized geraldine really said she recognized his voice she said that she heard him speak for a few seconds she never heard his voice again and she doesn't remember what he said at most what that shows is mere presence in the house which schaeffer gaggia himself testified that he was present in that house but when he was president was during the search portion and he found two women present peacefully in the house and more to the point this court has been clear and consistent that mere presence at the scene of a search without a showing of direct responsibility for any alleged constitutional violation relatively vague question the response was truthful which said we did not violate anyone's constitutional rights and in the story also explain all the reasons why is that an honest answer to not present your own or those in a record to responses were provided in august of two thousand and ten i believe and that came before the officers had the chance to conduct an inspection of the plaintiff's house so those answers were provided without the benefit of any inspection of the house these officers conduct at least tens if not hundreds of of warrants the ability to differentiate over time becomes difficult until you have an opportunity to review the actual location and see whether or not you were present and so upon you're you're saying that upon seeing the house then i remembered that they had not been present yes they became more clear about the events obviously discovers an iterative process and which every party has the opportunity to kind of freely and more completely understand the facts and issues in a case and as part of that iterative process there are opportunities to follow up if any discovery response is found to be lacking well what help me count for what would the question have been as a follow up to to a deposition testimony that says i wasn't  and i don't know anybody who was that your what sort of follow up question can you answer can you ask that would get you any information about who was that your well certainly the plaintiff did have the opportunity to close all five of the federal law that's not what i'm asking i'm asking you when you go into a deposition and all that you've been told in written discovery is that i didn't violate pointis rights you have a public document from an official governmental agency that says that person was present and then in the deposition they deny being present and they deny knowing who was what follow up question who is a member of a group sex of the d a and they have that information you've already provided the team eleven there's a complete list became eleven on which the d n a agents are listed a long with well off case prior august hunger the three state or local officers and you had two separate reports that indicate their presence so we have them placed there by fishel document guess i'm just back to my sign question i don't understand hail an official document that places officers as president it does not create a dispute of material fact particularly in the situation that i find concerning that everybody present says nobody none of us where they are and we don't know who was there the wayne county record is in fact not a document of who was present it's a record of who was assigned to team eleven as of that day it's quite clear from the trial testimony that hundreds of officers from multiple law enforcement agencies federal state and local agencies a dnieper occurred is a record of who was there that day team  eleven i will agree with you is general despite description of who the taymor but the testimony was that that was what was told was that it was team eleven so i just don't think i've gotten an answer to my question of why you don't have a dispute of material fact between a public document that lists these officers as present and the officers denial of being present such that you've created a jury question in this court has made it clear that mere presence at the scene of a search is not enough to create let us know what we're talking about we're talking about whether they're this is a case that goes to the jury to determine credibility because the jury will get to determine whether officer crouse is report was an accurate representation of who attended made very shortly after that a van as an official document and the statement that every one of these officers jury could find in favor the plaintiffs where all they have is a suggestion that someone is at a location being at a location is not the same as physically abusing or failing to intervene in the physical abuse of a person so there's no of i don't want to waste all your time but if the point you have testified as officers kind mian in riot gear and i could not see their faces and they told me attain and i was injured and here's my doctor's report you have injury you have a van't you have time and now you have officers who say we are on the list as having been there but it wasn't us your position is all they have to do is all agree to say no one of us was present and that deprives the plunket of the opportunity to have a determination of their credibility by a jury i'm certainly not suggesting that any of the officers agreed to commit perjury before the court these officers all took an oath and testified as to what they were doing and they were clearly at another location as far as a report that suggests that they were at that location putting them at the location is simply not enough but don't but it's it's enough to get to the jury isn't it well then to determine the credibility issues but it goes beyond mere credibility because there needs to be an evidentiary basis for reaching that conclusion and there's no evidentiary basis to show that they any of these officers participated in either direct physical abuse or had any knowledge or should have had knowledge means an opportunity to stop physical abuse and failed to do so there's no showing that any of the officers had the physical proximity to do anything wrong had the knowledge to do so there's just no showing that s to any of the five officers ok there is evidence that gravity is there because there is voices is recognized you say that it happened later i guess what's the timeframe that you claim that the she recognizes voice how how how much after the door was broken down did she recognized connect these boys according to the federal it's before she ever in the living room so it's before basically any protective sweep always ensures that all the occupants of the home are secured before any search happened so it's before the protective suite so it's it would it would so i and really  ok and then there's also testimony of the federal agents the five of them that are called group six which is a little odd work as a team it isn't a reasonable inference if one member of the team is there that the other four members of the team are also there to speak more broadly to group six group six is actually designation within the da it's a nationwide designation so doesn't indicate a number of people on a team at all da has many many members of groups it doesn't matter what they call themselves but is that it is a reasonable inference if one member of a team if a group of officers the federal officers say that they work as a team it's reasonable to infer that if one of them is there that the others are there no it's not because because their group six is much more than these five individual officers group six comprise at least at the time of about seventeen or so officers and all of those officers are trained in able to work together on given one is a reasonable inference that the officers that are listed in group six that are on the four as having conducted before the the raid were there since one of the members on the list are there no no it's i mean it's the same response unit that it's always any member of a group sex who was present participating the operation that day could have been assigned to either of the two warrant locations and so the fact that they might have works together doesn't mean every day they worked together and were at home was their testimony the federal agents were the ones that did the initial raid that broke the doors down through the grenades and all that stuff th actually executed the warrant or made entry on the search warrant at greeley ok was it the modus operandi the federal officers are working with state offer local officers i thought it was my understanding that the way they coordinated activities with the federal officers did the raid on the state local offices generally the promoters that wrong oh i misunderstood your question or yes in at least for purposes of this operation the general mode was that  the state and local officers appeared to be on the perimeter and seeing how many how many officers of the take to do the initial raid to break down the door to do that it's generally not safe to do it with anything less than six to eight officers all right so and that's what higgins that's what the supervisor of the testified correct he did that he testified in his deposition he didn't take the stand at trial but you know in deciding whether matter goes to the jury we not only consider direct evidence we also consider circumstantial evidence and reasonable inferences that can be drawn from the evidence i mean isn't a reasonable inference that the federal officers if they did not disappear in the raid were there shortly thereafter  certainly reasonable inference that geoffrey again he was there he he so testified it's not a reasonable inference to assume that they that any of the federal officers were there during the entry phase because of the steps that are always part of any search warrant there's always an approach not going to now it's secure the premises to a protective sweep as well as conducting a search so it's not reasonable to expect that they would that any of them would be able to complete that entire process and then make it over to another location right and certainly there's no been no question that the plaintiff's injuries were allegedly sustained during the entry portion of the search and it's uncontested that these search warrants were executed at the same time so i don't think i  should not have any liability under monella in this case and we would ask that the decision of the trial court be affirmed jeff began at the time of the of the incident as alleged by the plaintiff and as being represented by the department of justice was a dea agent at the time of this incident there's no issue with respect there although he was a wayne county deputy he was assigned to the d a and he was according to the plaintiff's working out of the auspices of of the federal government at the time and with it that it was a warrant from one county correct it was a warrant that was that is correct it was a wayne county warrant but with respect to any type of law n type of liability attached to wayne county there is none the what's what's wayne county role in putting this joint task force together wayne county is one of several police agencies it's it was operation called operation eight mile it was participated in not only by wayne county at different points it could be oakland county could be mccollum county because this was a wing any operation that's correct but i'm saying the participants within these types of this in wayne county operation to conceal their identity and to not to identify themselves not to show their badges and all this no no there is concealment we had a fraudulent sealed case the fur right before this this is kind of fraudulent it sealed it as well county had nothing to do with the judge there is no such policy and in fact as counsel indicated there was before this federal lawsuit there was a for your request with respect to who the identity of of our information with respect to wade with respect to a raid at the greeley residence involving and i believe was geraldine burley by letter by letter before this particular  before this federal case before this federal complaint was playing candy said they had no documents we had no documents in and in backward of the six hundred documents that you later provided to them come from the specific for your request asked about a raid a search warrant raid at this particular greeley residence and it had been a fight a person wayne county said that we had no such records they were they wore  directed to be erect directed to d n a what the particular telephone number when this particular lawsuit was filed it and because it's specifically talked about geraldine burley and i believe the subject of the of of the warrant was not a when discovery opens up and again that's a for you officer that actually response to the for your request once discovery in this litigated case comes forward then obviously we have an obligation to find any records and the the request is a lot broader and so there were records that were produced to the to the plaintiffs at that particular let me ask you this there's a ninth circuit case called dubner versus city of san and county of san francisco i don't know the ninth circuit two thousand one decision where a similar case the arrest was lawful so that apparently the ninth circuit shifted the liability to the municipality in a situation like this and you distinguish that case well i can distinguish it just from from this particular point and that is there was no allegation that wayne county or that any wayne county officer participated in this particular if there was an arrest that participated in any type of arrest at the time of this incident all this was a de a raid and so and so i did and i guessed judge gilman i had not considered that particular point because there was no there was there was no type agents but there definitely is are there are still i know that it well judge i guess the only thing i would say with respect to defend it gak you who was who is the only name defendant from wayne county in this particular case we do know  however if you say it's it's it's well settled here that it had to be some federal agents and there's no way it could be state and local agencies i mean the other to get out ok well and judge i guess the only thing i'm saying is it is the uncontested testimony of all of the dea agents although they say although the dea agents say each denied that they were the ones that were part of the entry team it's undisputed that it was six agents who by i guess their mode and policy do the actual entry into the into the residence but how do we know that the local people were on the perimeter if nobody was valure to tell us that they weren't inside because what we have is is just a blanket denial so we've got all the federal agents say and i wasn't sire so how can they be testifying that the state and local people were on the perimeter or if they were denying they were present well judge i think you get that testimony from the from the state and local police officers themselves so their denial and entering into the greeley address well not only that but the testimony of i believe supervisor higgins who said that on these particular entries it is the dea agents that that testimony but with respect to wayne county again i don't believe that there's with the respect to their failure to train a theory wayne county has no obligation to train nine wayne county officers and the only wayne county officer that was named we came forward with evidence that hey look he is trained even if you even if you accept that he was operating under the policies of wayne county there is evidence of our training with respect to force with respect to detention but by the by the plaintiff's own statement he jeff could get he was working under the auspices of the d m the federal federal government at the time so basically you're just saying  all of those individuals are deputized task force officers ok your time is up for the question thank you thank you comet the county of mccomb enforcement team is assigned to help with this multi jurisdictional drug and prostitution sweep so what these officers do and it's undisputed they all testified the same is they show up at the like armory on the days designated for operation a mile there are hundreds of officers that are there they're told by someone on the d a task force you're going to be on this team or that team my particular client had no idea what team eleven was enough times his deposition never heard of it he was told you go with these guys he never met these individuals before with the exception of one former city of warren police officer who was a tea agent at the time  he doesn't he testified that that dea agent was not together with him at the greeley home but he doesn't know the officers who were with him so the evidence with respect to the state officers is a little different because you don't have this was an os what you have is also your core and it has a city of one police officer he's he's actually signed to the county of mccollum enforcement team which is a drug enforcement comment that county in mccomb and forstmann team assigns a certain number of police officers to help with this the city of one assigned some comment assigned some roseville signs on that everybody goes to help with this sweep and it's an annual thing  believe it's still going on but any event the three comment individuals who go are all signed to the same team like you said they've never met the the dea agents who they are signed with they go to the scene they fact was that they go on as a stack that there's someone who actually holds and i can't think of the name of the device that they hold actually break down the door escapes me at the moment but that they go on as a stack of six or eight very close together and that each has a job so when when the guy in the front goes any breaks the door they step aside the next to go in and one goes one way one goes another way so they know precisely what's going to happen they know the layout of the house before they enter into it my state officer and the other common officers don't even know where they're going they're given the address that morning they've never seen a search warrant they have no idea who they're looking for who drugs were purchased from in that house they would never be part of that entry team and there was testified to by agent read brown by sheriff land by  and his role in team six he was at for this year part of the perimeter team only for operation a mile and he remembers sargent and the other two common officers outside being printer security only not only does he remember that but he answered specifically testified and it's undisputed unequivocal testimony that they did not enter the home until such time as the occupants of the home were all seated in the living room plaintiffs testified without question that the alleged fees untap and before they are brought to the feet and put into the living room so it is undisputed they have the state officers enter into the home perimeter security as a general rule enters into the home only living room and this is very important because you have this it's not me issue in front of the court isn't that a question of fact no not with respect to the state officers because they're not saying it isn't me they're saying yes we were there here's the role we played here's what we did here's what we would ordinarily do interesting really enough exactly what we did is consistent with what we would ordinarily do and fact we were never permitted to do anything i would have loved to be part of the the plaintiffs agree and acknowledge the other important thing is that while there are ski masks and boots and black pants tucked into black boots and ski mask being worn and they're an all black every single person that plane of says assault them i remember reading about it this morning and was that some of them said police some of them said da and it would have been a marking in all caps on the back of the shirt and that would have been the plaintiff's testimony where they said that point but but my state agents my comment obvious or sergeant pirate in particular was wearing a baseball cap and shorts he was not wearing and he never raids he doesn't even have a ski mask he knows that some individuals do do argument is that whatever single defendant sat is that during this three day operation a mile they don't remember any house where there was any significant event so there was no house where anybody  a lot of drugs were found and that was a big deal but those are the only two things of significance and i haven't didn't the point is that there was a outside her home before entering she testified that she heard a boom she did not know where it came from and then she testified that her door she heard the door the quick of the door open and that's what brought her outside so it's unclear if the boom was arrows i mean these houses are that the block that we're talking about it's it's a rather narrow street and so she would be able to hear across the way at the hall residence if device like that went off on the porch so all the  they are both on the corner and they are a straight away from one another so we say a block but the lot sizes are you know maybe sixty or seventy feet and so they're they're quibbling of maybe  six houses away from each other if you take into account the street and i was only there once so i'm estimating of course but just actually the parties and i heard bennett talk about of the parties couldn't remember because there were so many raids done during this program the parties the defendants couldn't remember none of them what house we were talking about because they didn't remember anybody i'm going to bring a bird but the federal officer suddenly remembered that it was the whole hale's correctly because they remember that there was explosive device thrown but a judge they didn't remember that until we had an order compelling a home inspection and then all of the attorneys with plaintiffs and their clients went out to the greeley street and looked at both homes took pictures we actually put a person in charge of sketching out we had an expert coming actually sketch out the layout of the house so we could better understand and at that point so this isn't some situation everybody says oh all of a sudden i remember to know we went out there we met the plaintiffs our clients this is were just depositions and in a vacuum our clients saw the plaintiffs and spoke with them and heard their voices they heard the officers voices everybody was co mingling and rather relatively small home and so at that point then the officers were able to testify and give discovery responses and explain what their role was and so even sergeant wasn't sure what he did before he went out to that home so it was that home inspection and not some improper delay tactic that have they don't match the physical descriptions and and the plaintiffs acknowledged that there were officers that didn't match that physical description and that those those officers who didn't who weren't wearing those ski mask were not the ones that assaulted them they also saw that only officers that came in the front door were the ones that assaulted them they stayed on and there's a right and the state officers came into the side kitchen door and when we were to this home there they actually would jog their memory is that they remembered coming into the side to door so with respect to the federal defense i understand the panel's position but with the state defendants there just is nothing there was nothing that put them in the group because they're they are not in the group they didn't remember their role they remembered their role the every other person that testified testified consistent with their recollection and the plaintiff's acknowledged that there were officers there who fit the description that the state defendants are giving who were not involved in the misconduct so ever everything is consistent with what the state defendants have offered and for that reason some are disposition was granted you have to have some scintilla of evidence more than just they came in the home eventuality and we don't know who it was you can hang out you can't lump them in the pile of we don't know who it was because we know it this the plaintiffs were consistent saying the cops would beat us up for the first one through the door they're wearing all black they're wearing masks and they use flash bang distraction and the comic guys h we're consistent in saying we didn't see anyone get beat up the way that they claim we can beat anyone up that way we weren't wearing black we weren't wear a mask and we didn't use flash bangs and then you have the testimony of special agent kraus who has no horse in this race he's not a party he says i was there i remember we were outside were on the corner of greeley and winchester and i remember a tree and i was standing behind the tree and the camera guys were there with me so the only admissible evidence in this case is that the comic guys are outside there's nothing to rebut it it's that simple so organization run by the state police that usually operates within mccomb county on the day in question comment was loaned out to the dea for additional manpower purposes the evidence before the trial court of the time the rule fifty six motion that dismissed land was fairly limited to came from the plaintiffs themselves plaintiffs themselves testified without challenge without contradiction that the assaults perpetrated upon them occurred within moments of the initial entry within a minute within seconds perpetrated by the same man one actor dressed all in black and they asked with combat boots sort of the ninja suit as they called it the testimony from my client and the rest of the comic members was equally  unchallenged they were dressed not in black not combat boots they were not part of the entry team christopher land was wearing cargo shorts a t shirt a message jersey that said police and he remained outside during the initial entry phases when the sort of scene view was conducted during discovery in the civil matter he was part of that from going through the house he had a very vague memory that he later entered help with paperwork but based on players own testimony that would have been far far after the assaults took place there simply was no evidence before the court implicating him in either the assault or failing to intervene into the you being held as to whether there was a name on the black outfits of the people that entered land was not he was never asked that the visit was anybody i mean anywhere in the file past ok no more black was there any identification on the back and said police or whatever i believe there's some testimony i believe it came from plaintiffs themselves the two burley's or a son in a cousin who were present that some of the black suits had some writing on it may have said police but they're fairly unclear about that and the issue they don't remember this event two of them testified that they vaguely remember being at the house at some point how can they testify as to what they were wearing on this particular day when they don't even remember it well they say there were a lot of raid but i assume they were dressed doors any other house during that no you are no i do not and that's because you know that i think the underlying theme for my case is the doctrine of equitable estoppel they towed the plaintiff's team eleven executed the search warrant they didn't make that up when when we searched and when the documents were finally released to us there was a team eleven that executed search warrants where taking them at their word we can't differentiate between them because they made that impossible present but i think the council has made your opposing counsel has made the point that you've got to show which ones were the ones that abused used alleged excessive force against your clients the fact that they may have come in the house after the  try to get the two asked if you want individual judgments i gather against these particular people you've named how can you do that if you have no proof that they and your call well you know is is and you know forgive me but is the appropriate remedy that these officers get away with what they did because they refused to identify them so that and that's a problem i mean if seems unfair to your clients would also be unfair to saddle officer a b or c though with thousands of dollars a lot of billet the if they weren't the ones that advantage advantage of his own wrong and that is what they're trying to do if it's their wrong that's that's the problem though you can't say that everyone on that team eleven was wrong  rapt attention if we go for round two assuming and you know forgive me for making the presumption the presumption but assuming that you do overruled the court goes back to trial court there they already know the script we've already asked them for example i asked them you said on that day that same eleven split in half correct he says yes this is pat brown and i said to me eleven on that they comprise thirteen members correct he says yes i say how many how many police officers would you feel comfortable executing a search warrant on a house with he says at least eight which also corroborates testimony given by the the leader of the team i need at least eight three on the perimeter and five for the entry well then i say if you need at least eight and you're telling me to me eleven split in half that means five went to one address and it went to the other address and according to your testimony five would be insufficient to to execute a search warrant and so they know our the other thing is judge gilman brought up this ninth circuit case that would really shift the burden i'm not sure of its production or proof in a case of concealment like this to the defense that when they conceal their identities by worried mess they were a master nobody knows who they are i mean that's the purpose of worried a mask and then they say well you can't sue us because guess what you can find out who we work as we were a mask and we refused to give our your badge number refused to give our name but i'd circuit said well the bird ships in that kind of a case and the defendants have the burden and it seems like a pretty good argument my issue my question is have you raised that issue have you preserve that issue is it before us it's might might be appropriate here have you raise that issue no i only raise the issue of the equitable stop alecia i didn't find that case