mr berman whenever you're r if that answers your so what's what's right on one thing that a police officer who's told by the mother of a young man that he's got a gun can't use force to the extent that was used here putting in the in the back that she resisted in pushed him away or swiped at him and officer then pushed the student up against the wall that's the st instance well i'm reading from the case correct me if i'm wrong if it was slamming a student's head into the wall after her resistance had ceased it was a violation of clearly established laws that her that's curve looks so so would you agree that the fact i mean maybe you don't agree the facts here where's the is or slamming of the instance is when mr burton and this is crucial was already handcuffed in the back of the police vehicle and then for no police purpose was again out of the vehicle and pushed against the vehicle you know we've we've him i would respond your honor that the district court judge noted in is is ordered reasons then this is to noble review we don't we're not bound by that opinion for a factual matter we're not bound by there is no factual matters in summary judgment it's a questionable all genuine disputed material fact it's not even it's arguable he even had his me in his back and the and this nd incident where he pulled him out by his elbow wasn't any believe that the scott case represents that of course the panel's allowed to rely on the video however if the video is not conclusive well why wouldn't it be conclusive move what is the video not showing with respect to the force  i would say the video shows the certainly shows the point of being yanked out of the vehicle and being in then it's a i could say unclear whether he actually you know is pushed and hits the hits the vehicle well  question was where is the video inconclusive like like i can imagine some other case maybe where the video doesn't show some material part of the of the incident but i guess let me just step back and i think we're inconclusive with respect to the nature of the force used i would represent that the st video or the video if the initial arrest is inconclusive as to the force of the knee being applied to mr burton's back in that the for the weapon after the v after the weapon or even what struck me about the the the rest was how courteous he also was to your client and how cooperative your client was to the officer i was struck by the professionalism by the officer and your client's willingness to cooperate with the officer and said the guns in my pocket i've got some money or whatever i mean it was it was remarkable in the sense that it was not attempting to flee he was not a danger to himself he was not a danger to others he was not a danger to the police officers when one you're not saying the officer can't put on a on his back while he's trying to handcuff him you're saying you said there was excessive force with the knee and again it's not even because of all that he even used his name but assuming he did there was certainly no exhibition by your client of any stress or pressure or discomfort or anything else the vinnie in the back coming after  already been handcuffed i would submit with the case or shows would be excessive force because at that point he's been subdued there's he's not a danger to anybody he's making no attempt to flee and at that point  at that point he's there's no need for any force to be applied or you're saying boy cooperate the fact of the niek why me just the fact that he uses me as excessive force well i would add to that it's not just  the need it's the need after his after the fire has been removed from him after he's been handcuffed after he's been fully cooperative and after he's shown to the officers that he's making no attempt to fully these no danger to anybody i would add also on the rd gram factor i'm not sure that it militates very heavily in favor of my client but that this was not this is not a highly serious charge i'm not saying  what led to the altercation and here i'm hopefully i'm assume you would agree that we have dangerous behavior by the defendant leading up to the arrest when you group that i would agree that you're on it and  in terms of what i guess i would say that there was of course my kind denies that he was really doing anything dangerous but at least under the police officers understanding i will grant you that you know they had right to always fear that there had been  did the officers know that there were those drugs in the picture or i'm not sure of the answer to that your honor all of that is in may even granting that the officers you know believe that there was a dangerous situation at hand  current is right on point on this and what kind of weapon did he have i know it was a handgun and i can tell you more specifically in that then you see the weapon on the video i'm not i calculus of excessive force changes once once the suspect has been subdued it is no longer a danger to others a danger to himself a danger to the police and is no longer trying to flee and well in this then he tell them i've got this that the other then the officer says here let me help you up in the state of you know get on your knees so i can lift you up there was there was no improper action at least on the video towards the end that just the opposite he could not have been mice or to him i mean i guess on that point i would just admit that this is a question of fact as to whether the officer didn't put his knees reversal here and so in current they talk about how the police stop talking about occur and just tell us about why about like there was a car the officer is not entirely qualified immunity based on the facts because the client mr burton was already in the back of the flight vehicle he's handcuffed there's no reasonable way to say that he is attempting to flee that he's danger to anybody else he's a danger to himself or that he's a danger to the officer but even if he's not a danger the police can say get out of the vehicle and is that i thought the video was clear that he refused to get out that's point your sanity can't take him out that's correct your honor in multiple cases the  th circuit has stated that even if a cop even if a suspect at st refuses to exit a vehicle the proper course of action is to not resort immediately to force but to try to negotiat tried talking and there's been multiple cases de ville versus mark can tell two thousand and nine th circuit case similar instance the a woman is stopped for a traffic stop if she's not  handcuffed she could drive a vehicle way and the police officer ordered her to get out of the vehicle she says she refuses until her husband comes to get her child away that she wasn't in a police vehicle that's correct she was in her o he can't they don't have to beg him to get out if he says i don't want to get out they can pull him out they don't have to beg him to get out but developers as mark can tell and believe there's newman versus asked the person to get out of a vehicle and they do not get out of the vehicle immediately that there should be they should immediately talk about time of information that they should not immediately resort to force in that that is excessive and that's precisely what happened here now he cited to elder and other talk i think and i could certainly be wrong but i believe the supreme court has held that we look to look at the law up to and including when we're here in the case but i can think that's a johnson case i could certainly be wrong sure but it has to be of presidential value and well could it has to be a case has to be a case that makes it clear as to what the law is such that every reason officer would understand and know what it is it's got to be and oftentimes in the jurisprudence and qualified immunity they talk about a body of case law a body of law that establishes what the parameters are of qual we have a pretty established money of law that once in arrest the is coffee immobilize then additional force can be problematic and can be violet but of a th amendment do you accept his description of the video in terms of the chronology going remove cuffs on then the alleged need to do is that is at least just the timeline that the video shows just when mel pointed out that the video of the erast on the side of the road took no more than two minutes deputy see him and rocks the body back and forth from left to right during the course of searching him how could he do that if he had his ninas back it simply you know not not not  actually possible and there is at most in judging them else view a brief snippet in time in that two minutes where maybe you can't see to a case and i don't think i mean i saw a case cited about putting your knee on somebody's neck when you're arresting them and that that seems to me to be materially different than what we have here yes the alexander case appoint officers is put on notice that certain conduct crosses the line and so if that case that you just read to me the officer read that case knows that that behavior crosses the th amendment excessive force line but i fail to see how that would put this officer on notice that what he did process i couldn't agree more i think it's factually distinguishable from the facts of this case i mean at most if we give the plaintiff the greatest benefit of the doubt with regard to the need the knee would have been momentarily placed on the back it's not evident in video but momentarily placed on the back each the exhibits no discomfort he doesn't shout out there's there's audio and video ok he doesn't suggest hey why you putting your knee on my back that hurts nothing like that whatsoever here's how moving to the nd incident because the sanctions right things did deteriorate instead of taking him to the police station they take him back to the home yes and then there's jeering and taunting once they pull him out of the call so as your position just strictly we focus solely on the issue of force and the only force was the removal from the car and therefore the beautiful taunting has nothing to do with the th amendment analysis that your going to well certainly you have to look to the objective facts and the state of mind or the intent that you know cases talk about that the evil intent officer should not be considered even if it suggested that we shouldn't dive into that pool to try to make out what they did with intent is what were they trying to do we look at the objective facts and his conduct has deteriorated to the point where it's his conduct it's his conduct the actual motives were of the deputies and again no way i think there's record evidence that officer she had said i wanted to intimidate him well is that correct there was attached to the the deposition the internal affairs investigation and there's no doubt about that but don't we go back to the objective facts not the state of mind or the intent of the officers and i won't dispute judge mark felt that there is evidence in the record to suggest what they were trying to accomplish in addition to taking hold  situation getting him to change his conduct and admittedly eventually transferring him to cook's vehicle because cooke was the russian deputy and pursuant to procedure the russian deputy is ultimately to bring the suspect back in and they did say that at the end of the day that that's what they intended to do which put him into cook's vehicle and take him back i would think your argument would be that none of the stuff we're talking about is material to the excessive force can't take a deep dive into intender state of mind laughs we've got to look at the objective facts and ejector factual reflected in the transcript that was attached to their opposition of the summary judgment of the conversation that's captured on video and you can that the verdict is just completely lost it is combative he's threatening he's using all sorts of just inflammatory language with these law force my office is a law enforcement and so they had a right to make him get out of the vehicle after he refused three commands he asked him three times to get out get out and we can't take a deep dive into exactly what their purpose was in asking him to get out their state of mind rather the objective fact that the asked him to get out three times and he refused to comply and then they used a minimal amount of force to remove him from the vehicle her and also emphasize de ville could you speak to that you know he was he was completely uncooperative in that circumstance and there's there's evidence that he was he was you know up not he was making physical manifestations towards officer like he wanted to don't know what the provocation was is there presumably driving into the police station to book him then they stopped a detour stop in the end came out and so what you're telling us now about all this provocative dangerous threatening behavior towards police that e get out i know but honestly i asked that two opposing counsel i suppose have police officers drive you for into a forest instead of the police station where you would expect to be getting out it might be different i might not want to get out of being asked to get out here but even if that happened in it it was on body cannot is and they used they used a reasonable minimal amount of force to remove him from the vehicle her then and it's all even if you're out in the force then what's the deprivation of the constitutional right at that point and let me also suggest this you know there was some suggestion that well they took him out of the vehicle and they used a minimal amount of force to remove him that's those are the facts plans can't create new facts outside of what's on that video that asked him three times to get out of the vehicle he refused to command that used a minimal amount of force to move the vehicle they didn't throw him to the ground they didn't kick in they didn't always referred to the officers in can an argument he said they did this they did that that's wrong the sheriff wasn't there deputy gilberto was there he was a trainee he had no authority to do anything other than stand there and watch what was flying out there's no evidence in the record of any policy that the sheriff promulgated any policy that was violated there's nothing here to support a verdict against my clients and y'all touched on this even in the in arguing here today the the use of the word they just gets thrown around and puts my people in with these two officers and i'm not saying the officers did anything wrong i don't think they did a heroic at all i don't think there was any unconstitutional excessive force here however if you look at my the relevant case law and i just want to note that that's the elder versus hotly case the supreme court in which they stated that the court and gauging review of qualified immunity judgment should use its full knowledge of its own and other relevant preceden second there is absolutely record evidence of to show that there was no purpose police purpose in taking mr verver out of the police vehicle with that what case can you point us to that says that that is th into a forest right honestly say ok get out of the car and i think the importance of that is that judging excessive force is supposed to be a calculus a balancing act of if if the officers need to use force for a purpose out of the ground factors then they're allowed to use more force if there is no reason for the force whatsoever then even a small amount of force the should be should qualify as excessive and this is precisely a case where there is absolutely no reason for force well isn't there isn't there evidence that consistent with what we heard that they were removing him from she hands vehicles so that he could be placed in cooks the cold will cook himself this is in record evidence officer took himself stated that he agreed that there was no evidence to support taking the hancock handcuffs off that wasn't my question my question was he was moved from vehicle one to be  believe that's in record evidence but there is also on the record evidence both officers stating that there was no reason basically they could have taken immediately to the jail c m self admitted that they had enough reason at that point they had the power to bring to the jail and that they did not need to bring him back to the mother's house and in fact the reason they brought the owners in they drove back to the mother's house was to basically continue the investigation i think to talk to the mothers on the video there they're talking to her on the video right but that could have brought him back to the jail and that the purpose in taking him there and asking him to get out it wasn't so much to to do this transfer but instead they just pulled him out because they wanted to intimidate the alexander versus city of round rock case shows that even in significant injuries is always there there if because of the grand factors if there's no if there is a gram factors if there's no attempt to flee then even small amount of force is excessive what is the at right that are going on from injury to help from being removed from the car there's record evidence of him having neck i mean back shoulder neck problems and complaints of pain