district court denied a qualified immunity based on its characters ation that the plaintiff in this case was compliant and submissive to the deputies at the time of the incident when the defense attorney when the fact viewed from the perspective of the officer on the scene at the time of that and under the circumstances that existed that there's no that the characterization of the district court is incorrect that the plaintiff was not compliant and he was in no way submissive to the directions of the deputies which is to try to paint the picture obviously you're on is or where the plaintiff father head had died they called the police to come over the empty arrived deputies then arrived the empty asked for a d n r order or a bracelet too to see the paperwork they couldn't produce the paperwork he said oh i have it but i don't have the paper he doesn't want to use that city but i don't have the paperwork at that point time he emptied told the both the plaintiff and the officer that well then he needs to a hook up to an a g and see you know what he can do if there's anything he needs to do it was at that point the plaintiff became upset and then as at that from my point for the situation escalated he began yelling at the  t that you're not going to assault my father you're not going to touch my father he was he was yelling at him he cussed out of he cussed at the mt to the point where one of the firefighters who was present you know called dispatch again and said you know step up the follow their commands a they'd ordered him to leave the room so that he could come in his own house where his dead father was and he was a doctor yes but i don't i don't think that you know that that's part of what the  on is the fact that he was a doctor i don't think that the the that the e m t is on the scene of the deputies you know can accept unfortunately what people say at face value and say i'm a doctor so you don't and then say ok you're a doctor so we'll listen to you i mean in the stricter case the mother was a nurse and said you know she called and said my drug my son is overdosing on drugs and the mts got there and there's the officers made some observation of him and said yes he doesn't look good and she said i'm a nurse i'm registered nurse i've looked at him he's fine you don't need to do anything in the court didn't require them to accept that you know the key issue in this case is tasing right that's that's where the argument of excessive force comes in right yes ok so we get to this situation my understanding looking at the facts from the plaintiff's perspective which we need to do in the community context is to say that plaintiff asserts that he was against the wall as i recall tell me if i'm wrong with his hands up and at that point he states that logistically you are correct  the you know part of the issue here and part of the issue i have is that while yes this is you know some judgment of facts must be viewed in my most trivial to plan of the same time it's an excessive force claim so the facts must be used from the perspective of the individual had refused to follow commands he refused to leave the room he had escalated situation by by yelling by being virtually aggressive towards them and to the point of taunting them saying you go ahead and tase me commands or you know he wasn't he didn't leave the room that's the problem yes that that's the distance the disregard of commands just like in situations the eldridge case that the  relied on even said there was an individual in a car and they ordered him out of the car he didn't follow that command the court said that simply following the command wasn't enough you need to have noncompliance with with a command plus  verbal showing of hostility in this case we have the failure to follow the command of leave the room in combination with the verbal showing of hostility towards the e m t and the deputy cussing at them it would be a verbal sign of hostility and that's what the standard is under eldridge is a verbal signpost in fact that if you cuss at the police and you are not compliant with the command to leave the room you can be take it wasn't it hasn't gotten to the refinement of cussing at them but as i said in the get in eldridge it was not compliance in combination with a verbal sho hostility and i would also say that what if they say if he said i hate the police would that be enough of a verbal showing of hostility i  there the other decisions are that when they're being told things by the police and they naturally yell at the police the police are supposed to have tough skin true but the standard is good and i would also add in addition to the cussing at them i think that the the the defiance of go ahead and tase me it's not simply you know it's but to show resistance to the officer and so yes if you  have some justification for shooting him but i would point to scream of course stephen and brady versus stewart which is set forth in a brief that basically says that the role of a peace officer includes preventing violence they're not simply a hockey at this point he's he's not interfering he's got it got his hands up he's up against a wall and you have a taser trained but again i would go back to the supreme court has said that the role of the police officer includes point i guess is my question because he failed to follow the directions of the officer and he basically had verbal e been aggressive towards them those are those those are the best as they entered for that use of force and it's been satisfied here but there was clearly the perceived threat by the by the into that was communicated to the officer so there was a threat wasn't physical was it yes i mean the perceived threat was that he was going to interfere with him trying to do  and connect the eighty to a spot that was that was a perceived threat that was communicated to the officer that was the threat that the officer was aware of that he was trying to prevent by securing the area as he's allowed to do under the communicator taking role know that's that seems to me were you got to dress and get booked but i guess at that point under the case laws existed the no officer would realize that in that circumstance simply training a taser on him and waiting for him to do something was required after he had refused to follow commands and was virtually hostile towards the officers i mean that that may be a gray area that's that's involved here because the stars whether or not he has to wait until he does something but clearly in the case law that existed there was sufficient actions in conduct that would justify the use of the force so another way of thinking about it is somebody were yelling and screaming at the police and saying you know i don't want you to touch my father and then backed up against the wall and hypothetically completely the bad things at the police but they were things like cuss words i'm going to report you to already i would say that would depend on whether or not from the perspective of the officer on the scene whether or not the situation has been defused if if you know standing mute and not responding or being hostile towards the officers if it had been defused at that point time from the perspective of an officer on the scene then yes that would change the circumstance but that's not what we have here the patient's relatives as my dad is dying and he said i got examiner make sure and you say look you idiot you're not going to there to take this guy out of the rooms for a good examiner well i just putting almost the same sequence only putting in on your physician number one i know my client i know he would react like well you know i mean but what your honor your client is a hot head in any case so whether you know him or not at least the record demonstrates that so i question would would wouldn't think that the doctor would have a right to examine that pushed him out the room you're probably be here just the same but i'm not i'm not i'm here because he was with his back against the wall in his own bedroom with his hands up his palms out are do i think that they would have a right to tase him if there was a police officer there and there was a family who was distraught about their their loved one who was in in medical doctor once you get in there to do is work that he's obligated to  if he's being physically blocked i would say yes have him physically removed one of the things you got into your honor with with counsel is why didn't you just do his job anyway why didn't he why didn't he do his job anyway the police officers between the subject my client dr kent was against the wall and the e m t the mt could have done exactly what he wanted to do which was everything possible to revive his dead father who has been dead for fifteen minutes or the reason your physician  the question my client was emotional his father just died he was extremely emotional i get that in a hospital setting though a patient's family doesn't have a right to be in that hospital room if that's what you're getting at this is his own bedroom he has every right to be in his bedroom to have loved ones room i don't think there's any law that says you can't be there in a hospital setting but if there was a surgery going on i i don't know i don't think they've got a right to be in the surgical wing i wasn't talking about that and if it became physical and if this patient's family in your hypothetical said you know i am going to do harm to you i'm going to threaten your safety then sure you've got to do something or other member in this case arguing why should we wait until it becomes his well remember there was an aggressive movement not want to dress of movement he's back is against the wall hands up palms out but he hadn't left the room he had not left the room please ordered him to leave the room so he has disobeyed a command as it were that's true that's true he was told to leave the room his own bedroom stared he wanted to stand by his father's hit his father's dead body he refused to leave he had his back against the wall so he did comply when they said put your hands down he put his hands down and they put his hands up against the wall palms out fair to say he only personally complied in the sense that he didn't leave the room sure yet he did not read leave the room there's no question of his whole family was the i can't the police tase him because he refused to leave the room  because i would say that it would not be reasonable grounds objective reasonable grounds to tase someone for not leaving their own bed so the police can't tase people simply for failing to obey police command that's exactly right what case do you rely on for that well i have a whole slew of cases actually and they were mentioned by the district court judge when she denied their motion for summary disposition case the case the hagans case the eldridge case could could they have physically taken him out of the room that's a good question and there's a lot of there's a lot of ifs here if what would have happened if they did i mean there and he made some aggressive moves and if they want them out of the room and the e m s people want to know the rules because they're worried about their safety too if if they  of the room well only two ways they can do it right push him out get physical with them or cage if they took him by his arm and tried to remove him from the room and he became physical and physically threaten someone or you're into first then then that's a different story of course but that didn't happen his hands were up in the air his back is against the wall and it's difficult at this point to to get into the facts because this is such a  just how quick it was how i kind of logic so i don't blame your printer so one i'm curious in terms of the facts he's he's against the wall with his hands up what is the police command at that point in other words is he hands up in my right and homes and what causes the police officer to tase him at that point well he does say go ahead tase me in his in his grief and be welder meant that he is being confronted with a police officer with a taser in his own bedroom under these circumstances he said go ahead taser me and he gets taken so that's the only statement at that point that your client makes at that and and at that point your client does not recall the police officer making a demand that he your client leave the room at that point right there was that the earlier there were only a demand for him to leave the room earlier earlier what i'm asking and exactly the point because because you're supposed to take these cases right step by step to see whether at the time that the tasers use excessive force that was it leave the room the other one was calm down  both of those were before your client was against the wall with his palms up true and it's difficult because we have the statements with with with and that's what the record is before the court today which doesn't include all the affidavit said supposed to deposition no there's no there's no affidavit it's all from the police report and statements that were made my client made a written statement both typed in and hand written those that was in the police report itself that's what they base their motion upon no depositions were taken at the time incidentally i did mention and i know this is outside the record but there was another paramedic in the room who was the the the paramedic or medical personnel with the most experience on the scene and he completely disagreed with what happened said that man should have been left there and not messed with he should have been left there in the window in the sunshine i did the record right right right and none of the deps are let me ask this question questions about the facts really emphasize my biggest concern i think you have pretty compelling facts because your client was in fact a doctor in his father in fact had tragically passed away and i can hardly imagine unexpectedly and i can't imagine a more difficult or tense situation but it could have been very different if he had been lying he wasn't a doctor it could have been very different if in fact his father was still alive and so we understand why law enforcement and paramedics need to kind of go about their business and do their business couldn't it be the case that the officers here made a mistake in should not have escalated to that point but that would not have been clearly established at that time you cite these district court cases the biggest problem i have is that looking back in twenty twenty hindsight you have these compelling facts but at the time i'm not sure as i look at the cases that i see that kind of clear guidance that we expect law enforcement to have when it comes to this constitutional law so give me your best authority draw my attention to the best statement of all at the time and september of two thousand and thirteen that this would have been a not looking back saying what was a mistake or be reasonable but no it was clearly established at the time that it was outside constitutional act in terms of law i would point you to the graham case it's been around a long time it's the united states supreme court decision and the grand factors in wh they don't they don't i think the apply i'm here but they don't quite fit in this circumstance right i mean i think they do fit exactly why this was not this was not objectively reasonable that's what it demonstrates and again the threat was i'm my client's threat was i'm going to take legal action against you if you harm my dad's deceased body if you assault my dad's body i'm going to take legal action that's that's the threat that's not what this case is about the case is about the tasering where was the threat of physical violence there was not there was not one threat to say i'm going to do harm to you there was no threat to anybody anybody safety there was no weapon there was no press of movement there was no touching of police have been a right to tase a person to calm them down if they're out of if there was an aggressive movement towards the police officer or someone else if there was some threat of physical harm such wish i could recent case but it involves tasering at the right thing happened as it came down after this happened right but it but it deals with a situation at the same time  as your client situation and so it is expresses what the law was that was applicable at that time so it is a relevant precedent and it is a published case  i don't know if the family has more questions of me i'm happy to address some thank you i think you are set thank you very  not dealing with a criminal or an arrest or to ation the only one that does apply is whether or not the officers perceived or pose an immediate threat to the safety of the officers or others  the communicated threat here was from the n t that he was afraid the sun was going to interfere with him do his job that you know the plane can talk all he wants about the fact that he didn't say i'm going to attack you i'm going to jump on you or anything like that perceived threat the only the only communication he had was from a c m t saying that he perceived this risk and the circumstances in that room with the plaintiff escalating it and becoming more and more vocal and and hostile and disobedient to their commands not leaving the room there was never a break where that tension or that frenzied environment stopped prior to the tasing it's not a situation where all the sudden he  except is that a correct statement that the best of my understanding is that is correct but we're dealing with split seconds here this isn't something that dragged out and this is a situation where we need to leave the room comp calm down let's go downstairs and i'm not leaving the room and you know and then  he's in a position where if he wants to interfere he can do so i mean that we're not we're not dealing with he a bedroom the size of this courtroom where he's twenty feet away i mean it's a small bedroom in a house and he's standing by his father's bedside exactly that that's that's the information that was known to the officer at the time in the pollard case there was you know officers shot eighty rounds into a vehicle that where they thought the person might have had a gun but ends up he did the fact that he ended up not having a gun wasn't a controlling factor it was the threat that was perceived by the officers that they perceive that they were in danger of him shooting at them that justified them