we look at the video business this rot the video is not the whole incident is it i mean i've seen it several times the video shows the point of being lifted into the it they are making that thing and i think it is very clear that he is he answered in the affirmative by shaking your head yes the answer clearly ask him is already who was in the back i can't answer that question there are i don't know why they couldn't identify the people i mean i would agree with you i would think that there should be some people who are saying who the driver was that terribly important in this case when one of his claims is that during the course of the ride he was having to bend down because his head was hitting the top and that his wheelchair was not secured and he claims that he complained to the interim who was in the back with him and to the driver of the van with regard to the trip to the individual in the back and the driver and so it's a funny situation there they're not hard up in the case they're not paris in the otter's they're named individually can't be held don't think that changes the analysis your point is that there's a jury on the part of the person who's been arrested to complain about the situation and you're deriving that entirely from the i suppose crude gets in the question about whether to have somebody in a wheelchair whether it is excessive force if you transport them unsecured sit now the the law is unclear here because there is still open law ss the judge pointed out with regard to what is required for a handicapped individual and post somewhat and someone you maybe you can tell me who decided that using a in turn or a summer intern or seasonal in turn to raise the wheelchair with his foot or her foot with a map who decided that now would be at least the commander baron was the one making the decisions on the team ok i see your your red card is up if i know i've taken one is i think it's fair to say that there's actually a dispute in how to interpret what we what we see in the video and then many ways the video actually did not appear that james can even elf i can fourteen minutes sixty seconds we agreed that we should have news james start from the beginning because judge griffin didn't hear her call so if you would start the clock new edition which james would start from the beginning ma'am please the court i'm katherine brinner defendant's claim that there is no question of fact as to certain facts that occurred during the course of the video but if anything there are some certainly questions of fact as because the video itself is imperfect and incomplete as judge griffin noted but if anything the video supports plaintiff's version of the material fact it shows at the beginning that he unlocked the brakes of his wheelchair when he was taking him into custody and cooperated in every way imaginable with the officers it also points out that as he was being lifted into the back of the van someone at least one voice shouted out watch it said indicating that it was obvious to others that he wasn't going to s t it also showed defendant fluker put his hand up between the plaintiff's head and the door frame and pushed his head down as that was happening now there is i think some dispute over whether or  not the point you made any sound at that time he testified in the deposition that he cried out now the audio on the video is dominated by a woman voice and it's hard to tell if there are any other sounds we don't know what the officers might have heard and i think it's reasonable to say that a reasonable jury might conclude that the plaintiff's testimony is the reliable evidence on this issue but it also shows the pla just you know just if we focus on the part of the interaction where you get the video covers going into the van you know what you just i want you to tell me what i'm missing but you know it actually seems like a pretty polite encounter all around you know that's that's the instinct one has no maybe maybe what i'm missing is ok fine everyone acted politely but what were they thinking with the van so maybe that's the but i must say when you look at the video it does look like a pretty reasonable situation all around well and i think you hit on some really important points there you know one the subjective state of mind and how how nice or polite they were officers were is really not part of the calc calculus under graeme versus o'connor what what we're really looking at is what was  under those circumstances and we have to look at the totality of the circumstances and what happened here in lifting a person while seated in a wheelchair in another cell is an incredibly dangerous we know from st john versus picky that you risk the person falling out of their chair that didn't happen to have happened here but it's an inherently risky thing to do and disability that tends to exacerbate the problem without the disability would have these problems but the case comes to the court solely as excessive force with agreement that there was no violation question or you could put it more politely but there seems to be a relationship between eighty eight compliance and excessive force with respect to someone in a wheelchair is all i'm getting at no maybe i'm maybe i should i should the case it's not clear but certainly by the time it got to the th circuit in two thousand and five they were looking at the excessive force claim under nine hundred and eighty three dollars that really have to do with how mr st john was being handled in the course of his arrest and his disability was part of the totality of the circumstances that had to be taken into account in that occurrence and that is exactly what we have here there's it's not as straightforward as a handcuffing test which was developed for a very particular purpose as as you know very well w friends on the other side are relying on that you can have latent problems so that someone is in a wheelchair doesn't prove they have a preexisting neck injury would be an example and so is that a scenarios and it certainly wasn't in st john because in that case they opted to take him out of his wheelchair and transfer him into the back of a swamp car what we have here is is a different scenario  mr johnson's neck injury really has very little to do with liability in this case other than i suppose it's somewhat related to why he was in a wheelchair in the st place it really has more to do with calculus of damages he was treated on reasonably and handled reasonably well guard less of a neck injury if he were in a wheelchair because they have a sprained ankle would still be here but the damages are different because neck injury there are some other facts that were mentioned earlier that i feel are important to to address one is the suggestion that mr jones consented to being lifted into the dam but the context of that interaction really can't be more i think it's very important to point out that as a black man interacting with police he could be risking his life by disobeying an order or by thinking no and  him more severely because he's black it would be it has to do with why he would readily consent and not give the impression with with that he would be disobeying an order but there's also nothing in the record  was familiar with the interior of the van or that he in any way understood that by lifting him in the van that he wasn't fit that he wouldn't have have safety belts once he got inside or that he would be injured in any way to the extent that there was any sense whatsoever it's not clear but limited back then as a safety point was i can see two different issues one are you in a safety belt within the wheelchair and then is there a safety belt rocking the wheelchair in place you're referring to the nd point right well there were there was there was neither you are right to point out that for people who are transported in a wheelchair both of those security locks are belts are equally important once the law you're saying and you're saying his wheelchair didn't have a belt or he had one he didn't put it on or was on i i i was referring to the van having neither of those so what was there a belt on the wheelchair just that went with the whale chair wherever it went was that was on i believe that well i'll say this much i don't believe that the record makes that clear that that has not been a point of contention between the parties i don't know that the record of stablish is that i think that's typical of the lock on the were also shoulder arms and hands and three this is this is all part of the same transaction once he you know it's one thing to be placed into a position where your head is being forced down and you're being forced to slouch down it is heightened once the space but your end is moving around you michigan is quite famous for its poor road conditions that spans you know eleven dollars thing about the transportation the claims that arrive during the transportation is not knowing who those individuals were you know my st reaction to the case was to be frustrated with the city and how can you not know it would be if you were but you know maybe in turn is a different matter but i don't understand how the driver wouldn't be in the paperwork so that part of the paperwork when you get to the police station and find it quickly for you it is on page six of our brief where we noted all of the depositions where we asked that question as well as  to the defendants in an affidavit that was provided in response that since footnote five on page two tapes are you ask one of the documents the the paperwork that is filled out the minute you get to the station i mean i'm like i'm not looking really for blame i'm just picking this seems like it's easy to sort out and maybe i'm wrong you would think so i don't have a citation to our specific response  you just again just to be clear i'm not trying to blame anybody i'm purely in problem solving mode this would have seemed like a very easy question for the district court judge to say no listen they have to have paperwork here at least to the driver was that brought into the station presumably the person the back as well please help us get this i mean i'm still the question's an open question i  just don't understand why that can't work because i mean discovery is voluntary and tell someone doesn't comply and then you go to this is a this is about as reasonable request as you get  i don't have an answer for why the city could not provide that information i knew it could judge would not help you know i can't recall whether we had any excessive force that's right if you're claiming that it was clearly established federal law at the time that this force was excessive and one of the best cases you can cite to us that this is excessive force and that these officers were clear notice that what they did finally got to show two cases that are of utmost importance here are st john versus picking which does not impose a rigid notice requirement yes that's a fact under the totality of the circumstances of that case but that case repeats over and over what bramber says o'connor graham versus conner  me tells us which is to pay careful attention to the facts and circumstances of each particular case so in this case we look at what was objective leave reasonable under these circumstances and under these circumstances the officer arrested a person while eating so it would be needed in his wheelchair opted to lift him wheelchair and all which isn't credibly dangerous in an itself put him into a vehicle that not only didn't fit him didn't have the precautions for him and his and his wheelchair and the natural conses the consequences of that were that he was transported in a very dangerous way that did in fact cause injury all of that wrapped together in the totality of the circumstances without reason well here the nd case you really need to look at is  versus cleveland that really addresses the heart of the qualified immunity question where it makes it clear that no controlling precedent to support the requirement that a prior to the need involve the same precise facts or otherwise be directly felt out and taken out of the wheelchair and their legs bent it looked back to the graham versus conner overall analysis and that what that's exactly what needs to be done here  detroit doesn't have records of jammu was driving a van on a particular day keep in mind we now this is a very unusual circumstance that the priests are running into they are you're asked to be arrested but this is a situation that they have not run into an individual in a wheelchair is being harassed in the city of detroit police policy  force this is not an excessive force case this is officers who are any unique situation who don't know what they call steward who are operating under what they have plane was being dismissed and wealth and immunity was one of them again there has been no analysis of qualified immunity by this judge therefore at the very least this needs to be turned back to the it these arses were trying to do the best they could under what they had in the most polite gentle manner possible it wasn't the greatest thing in the world but it's not