and at this time of year brown versus the city joshua moskovitz represent the opponent money brown by granting summary judgment after this court previously remanded explicitly for a trial the district court failed to it here to this court's precise mandate this court's mandate was clear summary judgment was improper on miss brown as excessive force claim because there were disputed material facts the panel majority expressly held that the facts here quote at a minimum preclude a ruling against the victim on a motion for summary judgment and yet on remand the district court again granted summary judgment on that precise claim it's clear that the entire panel even the dissenting opinion previously understood the mandate as requiring a jury trial the dissenting opinion noted that the majority quote remains for a jury trial student have to question on that and i'm not clear on your reasoning appears to me that what izzy this court held in judge newman's opinion was that summary judgment was improper based on the graham factors right that is correct judge wright that was what was held in other words you could not properly grant summary judgment on the issue of whether or not excessive force was use correct that is correct isn't it also true that the majority opinion did not rule on qualified immunity as to the excessive force claim that is correct the majority opinion did not explicitly rule it didn't rule at all because it wasn't before it wasn't that's correct the issue was not raised by the defendants on the prior appeal and  fact argument is that they had waived it by not raising it sufficiently in their initial summary judgment papers they did well that that's an a different question but you would agree that the majority opinion the opinion of this court never touched the issue of qualified immunity on the excessive force claim it never expressly addressed qualified immunity on excessive force claim that's correct i have one other question had waived her are her claims against the city of new york and hence the hence the grounds for the  excessive force claim in other words the excessive force claim is now only against the two individuals i correct as to her section one thousand and three federal claims the state law claims were not addressed in the prior appeal because the district court declined to take a supplemental jurisdiction over them after dismissing all for federal claims it's our contention and we argued on remand that those state law claims ipso facto come back into the case because the federal claim was remanded in which case  saying that we're we're precluded by the mandate from doing i believe that under kerman and other decisions of this court the district court has no discretion but to carry out the mandate of this court in this case the mandate expressly held that a guru trial was required whether or not qualified immunity could have been raised during or after the factual issues were presented out a jury trial i don't believe is foreclosed by this court's mandate but i do believe the mandate must be faithfully followed in letter and spirit and this case it was clear that summary judgment on excessive force claim was improper and encouragement what happened was the trial court had granted summary judgment on the basis of qualified immunity and that's why this court how they can't revisit that issue in deciding whether it goes to the jury or not the police questions so you know subsidiary and here it is different that the prior panel didn't express it dress qualified immunity nonetheless i believe that the prior panel again by express your amending for trial foreclosed qualified immunity on summary judgment because of the factual record before it did not support that and there were material issues of fact those material issues of fact are relevant to the qualified immunity question whether or not the officers use of force here was gratuitous or unnecessary to clearly establish part of the second part of the test was there any discussion at all in the district court or in this court's judgments opinion as we're addressing when there was clearly established that this amount of force oh was not appropriate for police officers at the time where specific proceedings are ordered by this court this court has said the district court has no discretion but to conduct those proceedings again we we do not contest that qualified immunity could be raised in the mr after a jury trial once those factual issues that this prior panel addressed were presented to a jury as this as this court previously ordered be done on summary judge that there was no proper basis for the district court  to do anything other than conduct a jury trial and the necessary proceedings to a jury trial of course and then could rule perhaps on qualified immunity depending on the resolution of those factual disputes isn't it also true that it's a different standard we're talking about whether the question of whether excessive force was used is one question the question of whether or not qualified immunity would shield the two officers from having to go to go to trial and from potential liability that's a different question isn't it under a different standard indeed there are two  different inquiries as to the officers reasonableness but the underlying historical facts that could ultimately determine both are in dispute here this court previously identified two facts that were in dispute and it is our position that at the whether the officers use of force was unnecessary or gratuitous ultimately is a factual issue that will determine both i'm specifically looking in the supreme court's decision and graham and footnote twelve i don't know if you familiar with it but it does talk about how the standard is looked at differently in other words the word objective in one has not been the same as objective in the other and the question of whether a reasonable police officer in that situation could have believed that the for speaking use was not excess is not the same standard as brown indeed the constitutional standard for objective force and whether or not our gram yes whether or not the force used was objective and reasonable and therefore constitutional violation is a different inquiry as to whether the officers were reasonable in their apprehension as to whether that force was constitutional or not but the historical facts that in this case we believe are necessary to be determined can u ltimately have a difference in outcome on both of those problems so in this case to the extent that the jury concludes and we believe there's ample support here that the officers use of force was gratuitous and unnecessary we believe not only does that show a constitutional violation in this prior panel of this court held there can be a constitutional violation here but it would also demonstrate that qualified immunity is inappropriate and i would point to this court's prior decision in tracy v freshwater in footnote five where the court held it was well established at the time of the underlying altercation in that case it was in the year two thousand that the use of entirely gratuitous force is unreasonable and therefore excessive so fast for the eleven years any reason lobster in two spray after he was handcuffed lying on his face this is a very important fact because all of the other parts of tracy where he was hit with a flashlight he was tackled he broke his hip on the fa correct but we are not relying only on tracy we're not winning me to the aspect of the pepper spray mr brown's case is the excessive use of force it's the force that proceeded it and force that led up to the twice being pepper sprayed this court previously recognized that there was no reason that's the language of this prior panel no reason that the officers couldn't have just taken miss brown's arms and place in behind her back but instead threw her to the ground so it's not simply the pepper spraying  that we believe demonstrated excessive force and that this court has held on other occasions it's clearly established that similar uses of force are improper and i point to and we cited in our brief the robeson decision in which this court held it was a constitutional or at least a jury could find was a constitutional violation to yank the arrestee out of her car throw her against a door and ultimately throw her against the fender of the car in that case as she was trying to get away from the officers and drive a car please the court doesn't slack on behalf of the at leas i think with my adversaries concession that officers could raise the q i defense in the midst of trial explains exactly why it made so much sense for the district court to exercise its discretion to grant qualified immunity now qualified immunity isn't immunity from suit it is to be resolved as early as possible i take issue resolved as early as possible which angry maybe you can explain why it doesn't seem to been argued by you the last time around you know i wish i had a great answer for that the only answer your apologies i didn't think you would yeah aside from the district court had ruled only on the first prong it's easy to forget now but this this case wasn't just about excessive force to begin with a lot of the attention was on on on false arrest and the first  a number of us i think perhaps some some members of the court were surprised by the panel's decision before because it did break new ground everything up to that point lead in the opposite direction that this would not cross the left hazy border between the reasonable force but i don't dispute we could be could have raised it this court is held we were not obligated to raise it and it does not constitute whatever term you want to use for future waiver but an apple he does not raise alternative grounds for for that that could have been resolved i think when it wasn't and it goes back to the district court the district court faced two questions do we impanel a jury and go to trial just to grant qualified immunity on the same set of facts and i disagree that there are any disputed facts that are material for the at this posture taking all of the facts the majority found that a jury could reasonably credit the officers aren't over qualified and there's no dispute that the that's correct so where are you going to trial anyway the only federal claim still existing is against the officers of the district court i don't i'll call from discord explicitly address this in his opinion below i mean the first thing to bear in mind is not not everything in an opinion is the mandate and that statement has to be read with the other statements made by the majority a jury will have to decide whether fourth amendment reasonableness was exceeded the district court could not remand address that question on summary judgment that would be fundamentally in conflict with this court's prior decision and mandate but the district court didn't address and so first opinion this court didn't understand the district court to address it neither the majority nor the dissent addressed it it was neither explicitly nor implicitly decided it was result it was left open and my adversary concedes that question remains alive and could be raised to trial if on the undisputed fact you are if you are correct then judge newman and i basically wasted our time in arguing about this case last pearson where there is the split between the two prongs and it is now discretionary for swords on an issue that you seem as to which you seem to say never mind why would you say never mind i think it is an important issue for the court to decide and fortunately we think the court got it wrong but officers do need guidance from the informed so too but what difference does that make the officers do do need guidance as to what are the constitutional limitations on their candidates they have you know they have the guidance that's a majority i follow mandates we all have to ok i just i just want to sh you are that it was not a complete waste of the court's time that's a real issue we do we do wish we do wish that they courted come out differently that was a meaningful answer but the officers are entitled to qualified immunity whether now was not squarely put an issue by the plaintiffs either we just ask you about going forward after the first deals decision the first panel didn't decide this was excessive force it decided that  thing is to make the or you meant that in terms of the standards would be easiest for the city to make and stand are you the harder proposition i don't know until this panel's decision before this for i don't know if that was the harder decision i mean you can say it is not the front immunity is always easier i don't i don't it is when your when you're dealing with the kind of mistake of fact  extra give that goes on but when when you're asking the question of what was clearly established the time it is a fundamentally different in korea and i do think you might disagree that we needed all the words in our brief here but they were it takes quite a bit to lay out what the supreme court has done here what the state of the laws of the time there were a number of claims a number of issues an issue on the bar appeal but i don't dispute that it's something that either party could have raised and could have very well ended up with a more efficient outcome and the district court could have decided in the alternative as well the situation we face now i see that my time is almost up the district court was given the choice of either moving forward inefficiently constitutional the constitutional violation followed by a subsequent appeal on qualified immunity because there would be nothing that would prevent the defendants from simply arguing in the first instance there is no constitutional violations see if they prevail there and if it goes on appeal and if they come back then now they can raise qualified immunity and that's entirely inefficient and a waste of time what do you say to judge force argument that the the idea that this was excessive force could not have been clearly established there's two aspects to my response one is judge forrest is certainly reasonable but her view on this was overruled by a majority of this court the second reason why that argument did they reach the issue of clearly established because as you point out you didn't raise qualified immunity no reason and the other side for reasons that a mysterious didn't even know but the majority of this court reversed judge forces view if that's correct that a reasonable jury could find that but here's the more important response to that argument which is if it's true that any time a judge or reasonable judge concludes that there is not a constitutional violation and that requires occasions in which this court has reversed the district court's determination that there was no constitutional violation and denied qualified immunity one is tracie the fresh water where the magistrate and the district judge both concluded that there was no constitutional violation and this court not only reversed that determination but also deny qualified immunity this court in robeson there was a dissenting opinion which the judge i think is all to mari argued there was no constitutional violation would have concluded that but the in our view that it certainly can't be the case at one or even two judges who subsequently their opinions are not with of them reason both of them very reasonable for her ultimate lee in the minority in the in the law the case can't control for that issue thank you thank you both will reserve decision