good morning your honor sean cavanagh on behalf of the appellant may please the court i would request three minutes for rebuttal and i'd also like to thank the scored for its willingness to try to accommodate my trial schedule that was supposed to be occurring this week i'm glad to say that in the process of resolving in that case will be coming to the sixth circuit for a resolution here your honour's this case deals with the district court's granting of summary disposition summary judgment which was inappropriate and i think what's very clear from the offset of the court's opinion was that the district court failed to view the facts in the light most favorable to the nonmoving party in this case mr rumen at which the case was very clear in the case that the district court was supposed to do the court's opinion in fact opens not with the facts from the perspective of the nonmoving party but the facts from the perspective of the officer of the moving party and actually the court's opinion goes through a number of pages accounting for the officers view of what happened in very much gives very short shrift to the testimony and the evidence presented by the plaintiff in the case we have as as in most of these police cases there are two computing competing views of the facts the officers and the plaintiff in this case we also had an eye witness account in that eye witness  submitted a declaration which was part of the record which the district court pretty much just ignored a couple of lines in the opinion mentioned it but that evidence that liberation was was crucial because it added to the account in the veracity of the account as presented by the plaintiff in that case and the opinion by the district court i think is abundantly clear that it really winnick afoul of the general rule of taking the facts in the light most favorable to the nonmoving party eye witness account did not see the the crucial event right i mean the question is whether your client was thrown against the wall well i think i think that is part of it but the other the other crucial part of your honor is that there was a question of in the district court made a lot of the pointing of the finger in there was a lot in the opinion in a lot of discussion about from the officers viewpoint of my client allegedly pointing his finger directly in the face of the officer my client vehemently actually i'm sorry  app yelling there's a number of occasions in the court's opinion that says well what in what the district court did was setting up for justifying the actions of the officers he says while there is all this yelling the declaration denies that  he says i did not hear any yelling or talking coming from outside he then says the declaration i saw him point in the direction of a woman that was standing in the parking lot nothing indicated he saw my client pointing his finger in the face of in the officer then he saw the police officer come standing behind my client grabbed mr room and that and push him into the side of the building after he comes away from the building he sees a blood spot he also sees paragraph ten of that declaration one of the officers holding mr room an app against the side of the building twisting his arms trying to put them in handcuffs he also hears a muffled i'm not resisting by room and that where the officers say stop resisting and he says in paragraph twelve i never saw mr room and that being aggressive in any way don't we have to start the starting point is that he pled guilty to obstructing so i guess what we do is we hate the most the least aggressive acts the least aggressive problem that that statute is that what you want us to do no i don't think you start with you don't start with that point you start with the gram factors and that's when you're dealing with the excessive force and the fourth amendment context that's always the launchpad from where these cases start and there's the three factors one is the severity of the crime now in this case we're dealing with at best some type of landlord tenant dispute mr truman that claims the ten of the band in a room the police officers take the position  eviction regardless of that the district court acknowledges that at any level no matter how you cut it this isn't a severe crime if there was any crime it off but i think also what's imperative in what the district court failed to do in this case in why song versus city if he mentioned it to sixty appendix eight forty eight the test is facts specific and not mechanical and whether the officer's actions were objective really reasonable has to be considered against the tally of the circumstances presented and so it's important that you start with not this this deferred prosecution agreement but the facts in the case the facts in the case starts off with a non violent non severe crime if if this can even be considered a crime so then we go to the second prong whether there was an immediate danger to the police or bystanders there is no evidence well there is obviously conflicting evidence in the record whether or not mr ruminant posed a threat to the officers the district court began its analysis and said that mr truman app was belligerent because he quote refused to allow the officers access to miss rekers apartment used in obscenity and gestured menacingly this is critical because non issue well i think it's a non issue in the court acknowledged that because there wasn't a false arrest claim that went to summary judgment in this case it really is a non issue in asim it probably refers to a range of behaviors and that it is possible that that agreement could co exist in harmony with your client's version of what happened and i think that's what judge white was trying to find that if it came to it you just need to face that fact and work randi i mean you would still probably have a fact question about some of the thing he'd be itching it would undermine your argument in any way so what's the what's the high enough about answering that question i'd have to you think there's a hang up i just don't think that the deferred prosecution agreement has any bearing on the facts of this case or what happens with the case because i argue that it was bad it was determinative as to your client with respect to certain behavior what would the certain behavior be as well and that's the problem the furred prosecution agreements page id three eleven and it references i'm seeing all seven fifty point eighty one day which does not define obstruct or oppose in the actual paragraph three talks about defended admits that he did obstruct or oppose greg alexander just be not agreeing to do what the the officer asked why wouldn't that be the answer most favorable the and that and that is one of the possibilities because oppose it through the question right but but to oppose or obstruct could mean the fact that when they says we're going to go in and he says no i don't want you to go in the apartment but that's the point counsel i mean the answer should be you can oppose without justifying that kind of force but we do know that he he he pled guilty to opposing it at a minimum and so did they have a right to arrest him we didn't oppose the all i can say is that under under the statute which is very broad it is arguable that they had a reason to arrest them but that's not ok for you if he pled if he entered in no load to that i don't see how you can now maintain that he did not commit that offense now you can argue about how he did it and what the facts showed but i don't you're going to have to explain to me how you can take the position that that he did not obstruct well he signed the agreement and agreed to it that he did obstruct or oppose but to say that it was some type of physical opposition or a physical obstruction that's not in the deferred plea agreement and certainly whatever opposition he made which arguably could have been i don't want you to go into the room doesn't the sus the tape the force that was you ok so that your argument that yes he may have opposed under the statute but that doesn't mean that they had a right to use that course correct i laded that refusing to allow him to enter the room correct no two things and i'll tell you why i'm fairly fedak in my know and that's for reason if you're honest look at my brief we've reference michigan supreme court case that addresses the statute resisting opposing obstructing are no statute and it's people vs they ask questions on page twelve of my brief that case specifically says that that statu requires some element of physical resistance so that's why i can say inventively no to your question but maybe more importantly if you look at the plaintiff's testimony in the deposition he describes an act of physical resistance that he did which is confirmed by the officer if you look at the plaintiff's dept page eighty six he specifically says that when the officer tried to reach for him to place him under arrest he turned away from the officer that is an act of physical resistance which is by the way consistent with the officers testimony that that would not however just the fact wishing somebody against the wall with enough force to bloody  their correct again i disagree with that because you know you can have an act of excessive force where there is no injury and you can have an act of reasonable force under the circumstances where there is an injury so the injury to me is as significant as what is the action that's just agri that it's certainly not determinative me but it is some evidence of the force that was used to accomplish pushing against the wall well possibly i don't want to get into that argument because my point is there isn't anything in this record that the court can say here is something if the jury believes it would be an act of excessive is bleeding i'm ok you're going to have to educate me on that one because there's nowhere on the record that it said that this that somebody pushed his face or head into the wall it's not in the record he says he doesn't it may he didn't see the doctor until five days after the incident and if you listen to him talking to the police in the police car he certainly didn't even have any problems of a cognitive nature on that day he's begging for a restart if you listen to the video so i think the answer that question is he complained of concussion like symptoms but that could be as a result of any number of things don't forget this gentleman was charged with a felony and he was facing a possible loss of work and that certainly could impair his  his well being and cause arguably concussion like symptoms because he's so upset about the fact he might lose his job the point is it doesn't matter one way or the other to me because i think that the that there has to be some evidence in the record that somebody committed an act of excessive force i don't think it's a reasonable inference to say because he might have had a concussion there must have been excessive force simply because you're reading things into the record that aren't there there has to be some evidence of that that's not a reasonable inference because it could go either way i'm pretty fixed at this point in my views about what evidence permits and inference and what does it i mean and and i'm pretty sure that mad if you have it just as good as yours so don't tell too much on that land all right well i apologize if i'm telling you too much i guess my point is this you're just guessing when you say he might have had a concussion therefore there might have been excessive force that's guessing i think you need evidence that you think might have been so much that he would develop symptoms can't sleep others what what did they that ultimately the all of the officers arrest him it is the prosecutor's decision to determine what he's charged with they have no say in that well that depends on what they tell the no no that's why i'm not a prosecutor i could never be a prosecutor well i would never charge him with that but i don't i have to live with that i guess what i'm saying to this panel here is that really i think the strength of my defense and is the the qualified immunity issue which was addressed by judge ludington below is it under these circumstances where you have and it admitted active resistance i mean do you watch cops you know every incident would be a lawsuit like this officers are trained when people pull away because so they don't reach for a gun they don't know what's in these people's pockets let's get control of the situation as quickly as possible so nobody gets injured and one of the techniques they i mean i go to these schools where they teach this stuff is get somebody in the prone position up against the wall they're off balance they can't hurt you they can't hurt themselves and then you get them c really quickly which is what happened here they pushed him up against the wall and they got him cuffed it could have been a lot worse they did what they were trained to do is they are clearly established law in this circuit that says pushing somebody against the wall who's resisting he's resisting he pulled away to get control of them and get him cuffed up is clearly established as a fourth amendment violation is not there this is that type of force that the supreme court has repeatedly over the last decade starting with saucy versus cats and that line of cases said hey wait a minute lower courts you got to take a step back you've got to have some clearly established particularized law or case law out there that says this act under these circumstances amounts to excessive force i don't write these started under the plight of when you think the circumstances the district didn't his the fact that he offered argument is it not it that's his argument yes it is but it doesn't conform with what judge ludington did he lays out everybody's testimony and then when he does his analysis he takes into account what the plane of said what the plane of says is i don't know what they did i don't remember they they grabbed for me i pulled away i started to say what are probably what are the charges and that's the last thing he remembers that's what judge ludington took into  lost his memory and later had concussion like symptoms i mean people don't usually lose their memories so either you know his line or something up and that caused him who loses memory at that point right i think the answer your question judge what is that in the course of struggling with the officers a fact that he doesn't remember but the officers do he was moving his head around he sustained an abrasion on his cheek he maybe did hit his head against a wall during the psalter kishan i guess my point is there's no evidence and it would be a different case wouldn't it if there was testimony from mr merrick or the plane if i was standing there i was compliant somebody put their hand on the back of my head and up my things into the wall now you would have a case that i would argue gets past qualified immunity because that's excessive force really doesn't matter if the hand is in the back of the hand in the back it if he's pushed hard  he's going to hurt his right yes but being pushed hard enough does not make it excessive force that's my argument they're trying to get control this is a small man this is a fairly large man the cops are my size and they've they want to get to the gentleman under control as quickly as possible listen some of these quotes from the cases justice thomas in the new case just january twenty eighth two thousand and eighteen district of columbia versus five eighty three us there's no up page so yeah at the time of the officers conduct the law was sufficiently clear that every reasonable official what i understand that what he is doing is it is unlawful can you really say that every reasonable police officer out there would would believe that shoving this man into the wall to get him under control was unlawful it's just not the case existing precedent must put the question of whether or not the alleged act was unconstitutional beyond debate the fact that we're debating it here today suggests that qualified immunity should apply saussy it talks about the hazy border between excessive and not excessive and how officers have to make split second judgments under these circumstances to get the situation under control you can't have twenty twenty vision of hindsight as a court to say well they didn't have to push him into the wall quite so hard that's the whole point of qualified immunity you can't substitute your judgment for the officers judgment on the scene so we could we could carry both ways i would be willing to say that what they did ever thought of having even if i it least in some body judgment they were overreacting to this well they were they irritated that he would not unlock the door for i don't know this is the entire police force of off  a michigan out there and two officers it's the yell but you'll remember the record that somebody said why didn't you call for backup and they said we were we were in it there wasn't any better it's a one man car they travel together i mean there that i don't understand what that has to do with it it doesn't have anything to do with it what it has to do with if they're overreacted to him putting a finger in their face except he committed  crime in their presence of he disorderly conduct he pulled away there's an act of physical resistance in the record and they pushed him up against the wall to get control of them it's as simple as that it happens every day police forces all over the world have your argument thank you but then i want them i won't i won't go any further appreciate your time dealing with mr morris is qualified immunity argument i'll just make a couple points this incident happened on february twenty eighth two thousand and fifteen i would direct the court to the miller versus an act county which was si zero six f third two forty decided june fourth two thousand and ten and that case it was actually a case that was mine and i argued in from the court on that one it talked about the arrestee being slammed into his vehicle and in that case interestingly enough there was no injury and it pages two fifty three in two fifty four of that opinion it says miller's claim of excessive force admittedly comes close to the  evidence of excessive force this court has previously found to be insufficient to survive summary judgment however we believe that a jury could reasonably find that slamming arrestee into a vehicle constitutes excessive county we it's six zero six f third to forty we mentioned it in our brief it was decided june fourth two thousand and ten so that case was the law at the time of this incident i qualified immunity does not protect them it would help me if you would answer directly because i am struggling with this you have somebody who is resisting in some fashion and they want to let  put him against the wall now your client doesn't is unable to tell us anything about how that happened right he testifies that he remembers his face being slammed against the wall after that he doesn't recall until he hears some voices but here's the interesting thing it doesn't even mention in the officers report about him of legibly then this is their testimony which is taken after my client's testimony which i think's important they say he moves his face left and right we supplied the court with that photograph that injury is not consistent with somebody taking their face and rubbing it left and right that is for it's consistent with somebody being forcefully pushed against a rough exterior wall with enough force that he loses consciousness and that wasn't recalls having his head slammed against the wall those are his words i don't know if that was his words but he does remember the contact with his face and the wall but i mean people's head someone who's been pushed against a wall to get their hands  their face could very innocently come into contact with the ball or it could i mean i'm trying to find out what you're relying on for us to be able to testified on page eighty three ninety eight page fifty of his dept he says alexander and so blissed he they say placed him against the wall if you placed somebody against the wall they wouldn't have the injury that they had on the cheek and they would've lost consciousness those are reasonable inferences that are required to be decided by the jury and not the district court they were relying on the ins and not in the testimony the well the injury and the fact that the two defendants admit they put him against the wall and you also have the declaration of mr merrett and the testimony of the plant that says he wasn't physically resisting and those are all factors that the jury has to determine at the end of the day maybe they'll believe mr truman it may be the believe the officers but that's the essence of why it has to go to a jury