The trial judge found that the force used to arrest the
respondent was excessive. However, her analysis of this issue
was rooted in her erroneous conclusion that the arrest of the
respondent was unlawful. Her analysis is irretrievably tainted
by that error and, consequently, cannot be relied upon. It therefore falls to this court to assess whether a proper determination
of this issue can be made on the record before us.
 The force used to arrest the respondent escalated because
of his refusal to let go of his flagpole. It was this resistance that
led the officers to take the respondent down to the ground. It
was only after the respondent was on the ground that the officers were able to get the flagpole out of his hands.
 The arresting officer said that, after the flagpole was
removed, he asked the respondent to put his hands behind his
back and the respondent complied. He was then handcuffed.
However, the evidence at trial was that, prior to that happening,
an officer, who was holding the respondent’s left arm, yanked it
up, causing the injury to the respondent that I described earlier.
Unfortunately, the trial judge did not make any finding as to
which officer did this.
 A review of the transcripts does not assist in identifying
the involved officer. None of the officers was asked who yanked
the respondent’s arm before the handcuffs were applied. The
respondent said that it was Officer Lorch who yanked his arm
but, as the respondent acknowledged as a possibility at trial, he
appears to be mistaken in that regard. Officer Lorch’s evidence,
which was accepted by the trial judge, was that he was not
involved in taking Mr. Fleming to the ground or in what
occurred after, as he was dealing with the DCE protestors.
 Officers Miller, Cudney, Bracnik, Courtney and Gibbons
all gave evidence that they were involved in getting the
respondent handcuffed while he was on the ground. With the
sole exception of Officer Miller, all of the officers said that the
respondent was actively resisting their efforts to handcuff
him while he was on the ground. Officer Miller said that the
respondent was not resisting although I note that the trial judge
did not accept Officer Miller’s evidence with respect to how the
arrest came about.
 Given this state of the evidentiary record, it is not possible to determine how or why the respondent’s left arm was
yanked, or whether, in the process, excessive force was used. If
the respondent was struggling with the officers the entire time
he was on the ground until he was handcuffed, it is possible that
the force used to gain control of his arms, remove the flagpole