which is: Taken in the light most favorably to the party asserting the injury, do the facts alleged show that the official’s conduct violated a constitutional right? Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (2001); see also Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir.2002) (en banc). In performing the initial inquiry, the Court is obligated to accept the facts as alleged by the non-moving party, but not necessarily their application of the law to the facts. Martin v. City of Oceanside, 360 F.3d 1078, 1082 (9th Cir.2004). The issue is not whether the non-moving party states a claim for a violation of their Constitutional rights, but rather whether the officers actually violated a constitutional right. Id. (emphasis original). Cf. Saucier, 533 U.S. at 201, 121 S.Ct. 2151 (<HOLDING>). If no constitutional right was violated, the
holding officers conduct must violate a constitutional right holding that in excessive force cases the threshold question for the court is whether the officers conduct violated a clearly established constitutional right holding that the threshold inquiry assuming as true the facts alleged by the injured party is whether the officers conduct violated a constitutional right holding that the initial inquiry for a court called upon to rule upon the qualified immunity issue is whether the facts alleged show the violation of a constitutional right holding that this case concerns the threshold inquiry whether smith invoked his right to counsel in the first instance