motion to dismiss because the district court found that there is a bona fide factual dispute about the direction of causation whether misconduct caused the police to use the taser or whether the use of the tas r caused involuntary reactions now we can't resolve that factual issue and i don't know how given the basis of the district court's decision  compatible with stance because the johnson does not prevent this court from reviewing a decision just because the lower court found that there are factual issues precise holding of john's right and the factual disputes in johnson had to do with historical facts had to do with whether or not police officers we have actually had an essential dispute right here and so i'm sorry but we have a different fact here but the principle of cases like johnson is not specific to the kind of sexual is it now is it your position that there is no factual dispute maybe in the sense that the only legally relevant question is how things appeared to the officers rather than how things were in fact that's right that's that that's exactly right your honor our view is that the videotape was viewed whether causation matters at all right if the district court addenda five as a disputed issue something that is irrelevant as a matter of law then i suppose one  proceed but how one show is talking about the video is just to say we think the district court was wrong about that issue right are you arguing that the district court has a debt of fide as disputed an issue that is legally irrelevant with or without a video yes mr dockery subjective intent i mean with the district court should not on western about intent this is a question about causation ok the video shows certainly the officers conduct the video shows i want your honor we get it to talk about this legal issue without regard to the video obviously not police are well i mean when you look at the video shows the whole picture i get is there any way to get you to talk about this legalization without regard to the video the officer is testimony no the officers testimony does not answer legal questions mr dockery's testimony no do you know what answers legal questions when you look at the well i don't know you know nothing i do is anybody's testimony or with videos it has to do with what whether the standard whether the legal standard is those are the facts of this case if factual issues are resolved in favor of your client's right the fact of the case is that the plaintiff made certain physical mo that's right whether those motions were an assault is a completely different issue based on an objective view of those motions i believe that the lower court got it wrong based on and objective view of those motions and the reason a police officer  not get it right and say this is a question that needs to be determined by a jury as opposed to us because i don't believe that the lower court us demonstrates that excessive force was used he also must further established that it was objective leon reasonable for the officer to believe that the force was lawful that is the plaintiff must demonstrate that the right to be free from the particular use of force in the relevant subjective intent for example when mr dockery says i did not intentionally kick at officer higgins well when you look on the video and you see those circumstances and the object of lee you would conclude or the officer could conclude that he did would would play a role in any just objective assessment of what occurred here and so then he falls to the floor completely on his own and then you see him roll and kick in his feet kick in the direction of officer higgins objectively officer heavens could could reasonably believe that he was being kicked out that he was being assaulted you know if those are the facts of the case and the use of the terms or only don't we need reason other further evidence even to determine how officers respond to this how are they trained about the effects of taser shot right if officers are routinely trained that a taser may cause involuntary muscle contractions then why would an officer objectively take signs of muscle contractions as showing resistance rather than the effects of the taser wire that kick that took place that i just referred to occurred before there was any tas the and even even the plaintiff agrees in there in their briefing that the that the initial taser deployment occurred at fifty three minutes and fifty six seconds and you can even see at that point legal issues only on this appeal the defendants have raised at least one of which is that they think that under well established law the defendants had no way of knowing that they could not use a taser on a man who was not resisting obeying orders and tape contradicts your statement of the facts as just delivered from the podium well we have a videotape shows exactly the opposite of what you just said he was not mine prone on the floor when the taser was used either initially or any of the subsequent applications of the taser and he was actively resisting that's what is shown on the video tape so under scott and plum hof we don't accept your statement of facts when it is utterly resisting suspect music just assaulted an officer or attempted to assault an officer your aunt has not submitted to their authority that's very clear he outweighs the female officer significantly and he has not submitted to the handcuffs and demands of the two officers your honor and the case makes it very clear that a taser use in that situation is objectively reasonable your honor i would disagree that he was acting actively resisting and certainly that the video blatantly contradicts his average and that's what the video shows he had not submitted to their authority and he had not submitted to  the bench he's obeying the order to be handcuffed to that bench but then officer higgins grabs his right arm and pulls it behind his back and apparently wants to handcuff him standing up mr dockery at no time pulls his right arm away from officer higgins he's obeying he begins to resist violently and advances toward the female officer who is coming around from the desk to assist officer higgins and that's when the entire situation becomes very violent someone he starts kicking and flailing and actively resisting physically resisting is a very large man well your honor i'd like to point to the standard here is what a jury could reasonably conclude a reasonable juror was objectively reasonable on the part of the officers that's a legal question where the officers for purposes of qualified immunity of behaving in an objectively reasonable manner that's right use of the taser that's right your honor and as a lower court found when viewed in context mr  we have to take this from the perspective of a reasonable officer knowing what the defendants knew at that time and what they knew is that mr dockery obeyed the command to be handcuffed he'll be the command to put his arms behind his back and at a certain point both officers were behind him in the video where the video doesn't show is that they were attempting to handcuff him with a single pair of handcuffs which they both knew from earlier that day was impossible due to mr dockery's inflexibility he was only possible by putting him through great pain and so you can see at that point in the video mr dockery wins and contract in pain as his arms are hyper extended that causes him to fall to the ground and as he's falling his legs fly up he begins flopping around as a gesture that is not an attack or a physical kicker or a kick at officer higgins but rather just a reaction to falling trying to get up and i think it's important to compare this to other cases in other circuits that have looked at similar facts so in the fifth circuit in ramirez versus martinez it was a very similar case there the defendant officers were seeking qualified immunity on the ground that the plaintiffs supposedly tried to punch them this was captured on video so that likely it was a player ask whether you are prepared to offer evidence that well trained officers can distinguish intentional resistance from evidence that well trained officers can distinguish between intentional resistance and involuntary spasms yes you have preempted yes they can and you know i didn't look i didn't ask whether you think they can i asked about evidence have you did you tell the district court that you're going to offer such evidence you certainly didn't tell us well your honor in these sorts of cases you cannot present expert witnesses for example on the question of reasonableness of the use of force and i think answering your question would go to that the core issue and the reason that you can't introduce expert testimony on that is because that is precisely a question for the jury to decide if i may have a i don't understand that at all well if you're one of the jury will have to put themselves in this you know the jury if you will be extremely lucky to get to a jury so the question the legal question is how objectively officers respond to what they saw whether it's objectively reasonable that's the question under graham against connor whether reasonable officers respond in a particular way to arms flailing or legs flailing depends in part on whether they're able to distinguish voluntary behavior from involuntary behavior and since that is pertinent to what is reasonable officer response i would think one would need evidence but there appears to be none in this record and you after some ambiguity don't sound like you want to introduce what your honor i would point to the case abbott and cyrus from the circuit in both cases on appeal the question is whether or not an arrestee who was teased a first time had made an inadvertent or intentional move to feet and specifically i'm looking at cyrus there after the first tase the arrest barrel roll say i was not asking about your interpretation of cases i was asking whether you had or heard or were prepared to offer particular evidence and i think that the answer is no if the answer is not no please explain what your honor i think that you know that i'm not talking about my interpretation of this case i'm talking about what  decide as a matter of law on an appeal qualified immunity if they look at the video or if they look at the circumstances the court can decide whether or not an officer should be able to make a determination about involuntary motions or voluntary one in cyrus there was no question of whether or not there be evidence at trial the question was after somebody was tasered once whether or not there barrel roll away from an officer was an intentional attempt to flee or an involuntary reaction being tasered there it was not an issue of whether or not there needed to be evidence presented at trial the quest the point was that this court made is that that is a question or series determined on the basis of what what they read about what they was juries determine things on the basis of evidence in the record and if you don't want to introduce any evidence on that if we don't allow drury's just to make things up as they go along i agree are going to try hard not to do that on appeal what will come out at trial is the testimony of the parties and the video the video conclusively show that i just want to be sure that's all you want to offer you don't want to offer anything other than testimony and the video you know you don't want to offer evidence about how reasonable officers distinguish between voluntary and involuntary movements your honor we need very well do such of the extent that is allowed because it's not good to the extent that a testimony is who g well thank you very much thanks to both counsel the case is taken under advisement and the court is