preference as to where i should what's your best claim or claims that's what's the best claim ok well i think that because excessive force is almost never amenable to summary judgment that claim is probably the strongest appeal and why almost never i'm not so sure i agree with you why do you say almost never you know i'm from the district court and i certainly have granted summary judgment on that last certainly and circumstances where i require trial well for two reasons one is because the there is so much case law regarding excessive force and in this case specifically back to the trial court jury would have to make that determination is strong alleged that she was handcuffed unnecessarily and unnecessarily long and  overly in a way that injured her because she they were officers were advised she had had sold shoulder surgery and in this case in the case of meredith versus the wrath in two thousand and three this court specifically addressed cuffing a non suspect during a lengthy search which is the situation we have here mistrial is not a suspect it's an unusual case because the raid was conducted at her home even though she was not a suspect her boyfriend was the suspect in the motor say any indication of injury or her shoulder condition because aspirated in the record yes she herself alleged injury and she of course is the one who knows what she experience shoulder injury which she alleges that was not the case and not the case what did she say what did she say that the jury would find in her favor that there was a delay an unreasonable delay between the time they were informed of injury and the time that her hand i was losing what would she say in terms of facts not that it was unreasonable that's of that's my memory without taking the court's valuable time and searching the record right now is that she alleged she was held in cuffs for about an hour and the officers disagree with dispute that length of time and i will reiterate that in meredith this court said that in the future after meredith there would be no qualified immunity regarding handcuffed detention not cooperate and so qualified immunity would not be appropriate in this case should have gone to the jury on the on the coffee and regarding qualified immunity i know that the defendant did raise that case involving the shooting of a woman who was holding a knife was a very unusual situation rica requiring quick thinking by the officers and no actual case cited exactly on point and here we had you can't just seize people's property that isn't even the subject of a and the reasonable amount of property destruction using a tank to mow down the fence and the gate for inside the home which is the lead once again that's a that's a very conclusion that it's a legal conclusion unnecessarily so you have to take all the facts out what don't you think  is rather important i think that it's not a legal conclusion as to what amount of property damage is required to carry out this particular search of a nonviolent crime in a non suspects home if if that were subject to summary judgment then the police would be given free rein to carry out these before done searches of nonviolent crimes in a non suspects home destroying their property and never get to the jury because let me ask you this what facts do you agree they knew at the time this took place didn't they have some reason reasonable longer lived there they had that information available to them and through to know that well your honor i can't get into their heads but i do know what they put in writing which is that they named this person the son they had no evidence he lived there at the time he wasn't his d m v address the information they had was was quite old they knew that these people who didn't live there the well that strong and her boyfriend who stayed there had no violent criminal background and they knew that they were investigating a nonviolent crime again we're not trying to overturn a jury but we're trying  to get back to where we get to talk to the jury give them these what you have to do with a decision that's made on a court of course the trial or the district court would have to make or would here because the end of disputed facts showed no violent crime on the part of the people who actually lived in the home it was investigation of an unknown nonviolent crime but that doesn't mean that there weren't legitimate safety concerns of course and that's why the the oh i think that that folks i think that's what judge silver is trying to focus on taking the undisputed facts of the safety concerns the potential for violence why was this still excessive if we allow these cases to be taken from the jury any time a police officer says we needed to use that tank two dozen officers and destroy our wires and  interior furniture in the home to look for evidence of a nonviolent crime and a very leisurely search by the way not a you know not a quickly evolving situation as with the casella case then we're giving the officers carte blanche to carry out these swat raids against citizens homes council did the complaint identify specifically who handcuffed you know because at the time of drafting the complaint we were not clear on who had done that is strong didn't know and so in the complaint pages are thirty and thirty one or thirty one to thirty two  we listed all of the officers who were named or listed in the swat file and of course none of them said and i i'm the one who is right what about destruction of the furniture d complaint specifically allege who destroyed the furniture so in paragraph that i just was just wanted to make sure that that was that my recollection was correct that there was no one specifically identified as being the perpetrators of the excessive force and the destruction of the property right so paragraph ten we said that all of these officers we've listed if they were on notice if they participated in handcuffing plain of strong in deciding to keep or handcuffed or in damaging the property plaintiff name later moved to amend the complaint to add them to the complaint there so that there's that issue regarding the john doe's and then there's the issue of the integral participation  the officers who drafted the search warrant affidavit obtained swat team permission so that would be the three named also you have to show direct involvement in the handcuffing don't you or and or the destruction of were decided to be made the decision but but with the assistance of trotter and burroughs decided to use swat which as i say this court said by itself can be excessive force and then the you know right of the search and so he oversaw the entire search that's not enough for individual liability on the excessive force claim well this court has faded in boise and in blankenhorn even in the absence of physical contact an officer can be held liable for integral participation if they participate in the search knowing that excessive force in the search insults because they participate in the telling they weren't telling the truth about the son who had a criminal record violent record there at the time that was not i think the problem is that there's very little to kind of controversy officers articulation of safety concerns but you're running low on time yes one additional issue that you wanted to give you an opportunity to address and that's the seizure of motorcycle parts at the shop for which there was no war form for the orders from those customers were part of what was seized by the officers and he says that he was told he would be arrested if he didn't consent to try to turning over those items now  whether he can actually give consent for some property that isn't his to be seized arguably without a warrant because there is no indication in the warrant that any parts or motorcycles were to be seized other than mr  consent i don't think so and that wasn't briefed below it wasn't raised below i think that would be an extreme argument to say that somebody who is simply holding something to repair it now it is reasonably perceived as that person's agent so they can mean please the court has been miller and one of the city attorneys who sued eugene in the individual defendants in this case the district court correctly granted summary judgment on the excessive force claim for at least three different reasons first the right lieutenant soulsby played a role there in determining what the operations plan overall would be and under the his declaration the search proceeded according to the operations plan but none of them had any role in  sixty four in his declaration he states that he played no role in handcuffing them or deciding how to handcuff them he never entered any of the houses he never damaged any property is declaration makes very clear that his role was not to engage with the individuals that were coming out of the house so well taken though the facts in the light most favorable to the plaintiffs they claim that after they were called out initially mr ong was handcuffed to tightly she complained in her handcuffs were loose and later she was then placed in double handcuff so two sets of handcuffs to make even more comfortable it was january so it's a cold time of year in oregon they're put into the back of the crisis negotiation team van just kind of like a converted bread delivery van somewhere warm for them to be there move slightly off site provided cigarettes to smoke brought back mistry is given an opportunity to retrieve keys to go through an open up the property all this time the swat team is conducting in essence what's called a slow search where they're looking for people trying to make sure that in fact there is another individual located there present in to be in any position to intervene if something were to go on so when you're looking at consent i think you're looking at the totality of the circumstances and that essentially involves two different visits to the shop with a first visit on the day of the warrant service at the house where mr byers goes to the shop cooperate allows the officers to look around they locate at that time the items that they determine are contraband and tell him hey we have we think that there's a problem with these engines and that's on january eleventh of two thousand thirteen officer trotter then returns on february twenty second of two thousand and thirteen knowing that mr byers has consented previously to him being there they go there during daylight hours when the shop is open know and what and was it clear to the officers that the part seized did not belong to mr buyers they were in fact customers parts in the light most favorable to the plaintiffs they provided information about registered owners that weren't mr buyers all right so so what what do you rely on to stablish apparent consent if i if i take my car to the shop that that means that the shop apparent authority to consent to seize her by law enforcement without a warrant the what we're relying on is the relationship of a bailey and a parent authority and there were also relying on then is also qualified immunity that a reasonable officer could conclude based upon the circumstances and conversations that they had that mr byers had apparent authority to turn over these items which were contraband under oregon law a motorcycle part like that that has altered numbers is considered contraband so it would be as if we showed up and we in mr byers had cocaine in his office it is it is but right but it's contraband in the same sense he's obviously going to say this is not mine he had you know certainly we believe a reasonable officer could have concluded that he had apparent authority to be able to hand that over in the deposition testimony mr byers initially couldn't remember being threatened couldn't remember being threatened his attorney brings him outside making back in and then said this line of if i didn't sign the paperwork that i could go to jail for altering or destroying the numbers reason why there was a delay that the engines were seized on february twenty second two thousand and thirteen they were released to the registered owner so we still don't know who the original owners were but at least the the individuals that that had these altered items since we weren't able to men who they are your original owner was we release them back to them with instructions that we received three serialised and that occurred in september of two thousand and thirteen shortly after the city prosecutor decided he wasn't gonna move forward on don't think that it realize it rises to the level of the director's sufficient that an officer couldn't conclude that he had the authority to do that often about what we're talking about qualified immunity principally on that claim yes and what we rely on about an agent having a parent authority to be able to to provide an item that they have joint custody over and that when you're looking at whether the consent is knowing voluntary all of those things you don't look at just one factor you look at the totality and in this instance now that the officer showed up during daylight hours mr byers greeted them they explained why it was they were there they asked him to sign this release they apparently made the statement according to him about the imus being contraband and that he could be prosecuted he did sign the release he didn't remember them saying anything else it was a polite and casual conversation he went out got a dolly help them move the items into the back of one of the officers pick up who's cooperating throughout this time and over all the the experience in the shop is not one of the officers pointing guns at him threaten pulling other property his those types of things that i think would an officer he describes that he didn't know that the gate was locked and there are concerns about it opening towards the house they also in his declaration at some excerpt of record sixty two he describes what he reason to believe that patrick months and who was the son they were primarily concerned with would be located at the property he had been there less than i think too much prior and identified that he was living on a trailer on the property to a link and a sheriff's deputy  and they had a lot of other contacts with them there so that they reasonably believe that he would be located there and he was the principal individual they were concerned  there's nothing to contradict that the information he had about who they were going to contact and their criminal history there's nothing to contradict that the officers reason to believe that patrick months and would be found there are certainly nothing in that record in some ways makes this very unique excessive force case because nothing was submitted in response to contradict what the officers knew in their planning for the warrant service out the idea being you have multiple individuals on this property with criminal histories you have multiple out buildings lots of different areas people can be rather then but it is a property crime that they are there for they have these  risks they have to take into account safety risk there where of and so they go in they do breach the gate but they go in to surround and call out and allow the occupants to come out to them before then beginning their source low search of the property there certainly is not a of the city of santa maria not similar to this whatsoever boyd again not similar those are cases where in officers are entering the house pointing guns at people's heads doing more serious things that's not the case that we have here here the officers made a decision to tactically get in place where they could cover the property and all the pleasant people could be and but then let them come out so they could be detained and then do the slow search befor the handed over to the detectives so the detectives could complete the investigation also what's your response to opposing counsel and position then the district court should have allowed the  here mr byers was the first one to sue the city of eugene he filed his lawsuit i believe in the summer of two thousand and thirteen seeking return of the motorcycle parts and he was represented by the same attorneys that represented him at the district court level they certainly could have at that point move forward with section ninety three claim and instead they waited until october of two thousand and fourteen to file their their civil rights lawsuit and then they waited another one hundred twenty to ways to try to seek leave to a man the name of the delta why why did the fact that everyone who was part of the rai court case say is as you look at the knowledge that the defendant has or the defendant to be added and our position was that they never provided any notice that the defendant was aware of those to be added defendant was aware this action had been mistakenly not understanding that they really should have named the individual officer they could have named all those people individually at the beginning for whatever reason they decided not to they could have filed it earlier on and done discovery within the statue limitations but actions that are described within the complaint itself your it's it is describing actions that those individuals took so you wouldn't make a mistake in thinking that oh they're blaming lieutenant soulsby for this when really i did it because their actions that he to the other piece of it is that again within that one hundred twenty day period after the falling of the complaint there's there's no indication within the record that any of those individuals to be added receive any type of notice about the  this isn't a case where for instance the city attorney represented those individuals that they were provided with the complaint anything it's your representation that those individuals never received a copy of complaint even though even though they were listed as having participated in the proceeding correct so already amended complaint correct so w  and i would point the court to the cases like bravo the city of santa maria there you have issues related to sort of a warrant that was likely invalid and in information that wasn't provided and the officers  going in very aggressively pointing guns at people deploying flash bangs during instances where they're not looking to where they're going things that put individuals at risk it's going to be a case by case determination and in this instance you know what we have is that the risks to patrick months and then the officers doing posed by patrick months and principally the other factors that said lieutenant sold the articulated and that we have is them doing sort of a modified warrant service and i certainly have looked and haven't found a case from the ninth circuit deals with the surrounding call out response saying that you know this is per se excessive yes you know they were they're interested in princip property crime theft wants a class c felony but they have legitimate safety concerns that they need to address to make sure that before they handed over to the detectives and that they're going to be safe the occupants are going to be safe and we can get in there now destruction and said that citing looking at that there is no justification for property damage where the information was there was a prior conviction for armed robbery and the inherently dangerous job of arresting drug dealers those weren't enough to allow the officers to just immediately destroy property during a swat raid on the seizure of property of the non residents there's a question of fact regarding whether the length of time the property was held was was valid the property was seized february twenty thirty in the prosecutor released it twenty thirteen and it was not returned until september of two require service or requires notice they want to notice the officers who were still employed by the city clearly should have been notified if the city was served with this very detailed list of officers that were