but i think it's important to keep in mind the directive from the supreme court earlier this year in the city of escondido case where they again reminded us that it does not suffice for a court to simply state that officer may not use unreasonable and excessive force deny qualified immunity and then remit the case for trial in the question of reasonable reasonable this and officer cannot be said to have violated clearly established right i lost the rights contours were sufficiently definite that any reasonable offer official in the defendant's shoes would have understood that he was violating we have stressed the need to identify a case where the officer or an officer acting under similar circumstances was held to a violated the th amendment that's what we don't have here there is no case identified in the district court's decision or in any of plaintiff's filings that demonstrate an officer acting under similar circumstances was found oh by the way the th member what about the under control at the time of the arrest or at the time mr stevens stepped on his foot we step back what's important to consider is when we preserve the gram factors the severity of the crime well we're doing what now you're going to level of generality for you that habitat henderson these are all you as you know in your opponent's brief i don't mean to certain to spring them on you h twenty four anderson or some case boy that's awfully close breaking an ankle i think  difference your honor and henderson is this in henderson at the time it what that case turned on was actually the use of pepper spray right at the time the individual was pepper sprayed he was fully cuffed his hands were cuffed behind his back i mean you can call it a step you can call to stop the video shows what it is you know we don't dispute that he step or stomp whichever we want to call it on his foot but he wasn't under control of the time and that's the critical difference between many of these cases that the plaintiff cite circumstances and we look at the fact that option robinson officer robinson and sergeant stephens were approaching this from a distance if you've seen the video you'll see it about the same time things escalate they now what it is i think what what may make it a little difficult is that part of the tape was slowed down so people could watch it and see what was where the right leg was yes but he clearly did strike him as he approach accomplish with the stomping of the foot the district court thought might have broken the ankle depending on which leg it was and so forth sergeant steven starts to pony up the in the record was he was attempting to distract or get control of the s t and get him to free his hands that was his the nd statement his st statement was that the guy was supposedly trying to regain his base and the judge says there's no visual evidence of that on that video what do you think about that the judge did say that and i guess the point is we have a situation where he still the suspect has not given up a c n c he's not under control he's not in costume asking about the regaining the base argument i think i was there any basis for that or was that a pretextual reason i don't believe it's pretext on any means your honor i think when you look at the video it is difficult to see that aspect of it with that leg i want it meant that i mean the video shows what it shows the reason we have a situation where the use of force is undeniably called for we have officers who actually inflicted injury upon mr shelton or the district court properly help they acted reasonable this is a very fluid situation and what this what were you going to say was the other legitimate reason if not to prevent him from regaining his base which store of a situation where the suspect has not given up as he and he's totaled up one of the most dangerous positions you can have for the police officers who are attempting to arrest this gentleman this whole thing occurs because of his act i was helped with that it secures of a limb that is unsecured and anytime you have any part of the body knelt down and held the oig one could put the foot on there without the extra gratuitous arguably stomp and hold it down with a foot i think maybe is that would by the district good question i don't know from the judge up on his decision if that was that was the issue by the time which on a small comes up he's already said i misspoke i'm under stood by the time he comes up then the suspect is secured you see in the putting your foot on the leg without the stop with that work for a reasonable officer you know i think in hindsight looking at things from a two thousand and twenty vision in the safety of our courtroom our offices which were not shot talking about circumstances could have done including what sergeant stephens did i think that's the situation you know these are very fluid dangerous quickly evolving situations and officers make judgment calls and we know from may be looking in hindsight is not a judgment call that we would have made but it doesn't rise to the level of being plainly incompetent or knowingly illegal as the standards require and certainly here i don't think it does we have a situation where again a violent felon is last seen with a handgun after beating a man within an inch of his life a man who sort of vegetative state to day leads police on a you over one hundred mile an hour state high speed chase crashes this car flees into the woods and comes out on the other side refusing their commands when they have guns weapons pointed at him telling him to get on the ground that's wh if you have a violent felon turtled up suspected to have a handgun radioed out over the radio talk about officers and gun be aware be alert be careful refusing to do everything he refused to do you've got a situation where you have to do the reasonable prudent thing that a reasonable officer would do and i think that honestly that's just where the district court erred into colluding that there was a fact issue on this when you look at the facts objectively you look at the cases there's no case  drove down into sunset park sunset marina in rock island where he was on observed there was a long period of time where he was unobserved when he was in the woods after he crashed i don't know where the handgun was dish but what we do know is two experienced officers   shelton saying all two times the court has ruled against mr stevens they have found that stating that it's unclear that stevens astop served any legitimate restraint purpose a fact issue on which angle was stopped on mr stevens and why i understood there but why does that matter i mean the idea that if the ankle didn't break then it was reasonable and fair did i believe that's mr stevens argument that well because it in his version of events that he's stopped on his right ankle there is no injury then there is no excessive force and in our in our case the excessive force you know we believe about all kids  the district court except that if the stop was on the broken ankle then it was ok as a matter of law but if it was on the i don't think they reached that decision though it is a it is a question and one that's come before this court before whether  ok go ahead with a client certainly has nothing to commend him so what was your on your client has nothing to combine themselves in other words was a yawn is he was here i was answer to rodney king  i don't believe stephen saw that in this case now i'm not saying how is what stevens did legally different from what robinson if it's ok to have well smack a guy in the head with a right well w get him to take what i think is out why wouldn't it be ok to stomp on a guy's leg in order to try to get a reaction to guess arms right and that's a very good question and i think from the video it's not clear and i think that just report says that there is a fact issue on whether he's resisting or not i think the difference between she said robinson was ok because he was resisting yes and i think that the difference here is that when robinson applied the force he was actively resisting and when stevens applied his  k well but robinson incident was only a couple i mean i've looked at the video it's just a few seconds before the stop if you're saying it changed the situation change materially between the  two i think the district court found that there was maybe a change in circumstance at that point that would change the level of resistance that shelton was but isn't it undisputed that he was still turtled as they say when exactly what's going through his mind and night i don't know if under the standard set of core standards that we can look at what the officer is thinking subjectively we can only look at the video it says objectively what your best the district court cited crowding in goma as i read it in the last order as the principal authority supported i have qualified immunity the opinion says it's unclear any legitimate restraint purpose was served by this action see crowd against gomer but that's a case involving as you know a guy who was handcuffed and not resisting in the court said well meaning him in the back and punching him five or six times in the back and doing it need to drop and so forth was to send the reasonable sure zat the closest case you have factually but at that very moment when the stop occurred the question is what is what was his level of resistance how much was he a threat and i think that's what the district court was getting at is that there is a fact question surrounding his level of resistance a in the crop case remember that the suspect in that case had was armed with a knife and so it was perceived as a threat it was also in a vehicle that he was resisting arrest and had to be hit tossed out of the vehicle the pinion says he was handcuffed and not resisting at the time of force that was held on reasonable and as i understand it yours it was undisputed that your client was not towards is the overarching problem i should say problem consideration that whatever injury he may have suffered was almost self inflicted or self induced by his failure in the st instance to to get down to the ground well don't know exactly what was going through his mind at that point but he had just you know but not a foot chase and then was you know surrendering and he's tackled and any underneath five thousand four hundred and fifty six officers and  interrupting the officer testified that they were focused on what they were doing and not shelton and not what other officers were doing ok you didn't reply to the one turtle case they came up with carpenter vers granted qualified immunity it did yeah it did and i think you know in this case it's a question of fact whether it's actually totally knob or not based on you know stevens claims he was and the video doesn't show that he was totally up or  i think he was protecting himself from the blows of the officer said bad then that would be an admission that his arms were still inside of him whatever his motive is that is that the record i'm not anything like that but he said he did see somebody standing over and over and then he stopped down yes snap and crouch yes from your standpoint as are any from home obviously yours say don't over interpret that stomp or under interpret in other words is your theory that this was a case your client had never really become that docile i mean otherwise the officers and i would not have continued to struggle with them on the ground that i mean that's what that's what logic for and i cannot nd guess what the officer was thinking or doing at that point but the fact remains he's under six officers the question is is he really a threat if he's if there's six officers on top of him were i mean that's the argument suppose you might make were as he was walking away with his hands up and did a weapon protrude from his pocket solution there was a the district court recognized in the fact show there was a hard object in his front pocket no one knew what that was at the time counselor excused please call the next case for argument