adventure clearly established that the officers conduct violated mr fuller support them in their rights their view of this determination is a legal question before the court and this court on the ocean i don't know about that i don't know arrest exhibit hostility is contrary to the testimony in the video evidence and we've let the videos in this case don't you present a question of fact rather than a question of law if that's the case if you're disagreeing about what the evidence shows and if that's the case why do we have jurisdiction  doing with the question of that being what the state of the law was what was clearly established and more importantly whether or not the officers conduct was objectively reasonable and light of the day and under cultural versus qualified immunity analysis and that's because it's you have to look at the analysis of whether or not there was probable cause and this case i don't think that there was a dispute as to probable cause which would give the koreans justification to district you know you're on your own i think it's it's more of a legal conclusion with respect to that point specifically given the probable cause it's it's clearly established in the law that when there you can only use a taser if the person was belligerent or aggressive or violent are you suggesting that the case our case office that you can use a taser from minor offense for someone who is not being violent or aggressive i think the no i'm not suggesting that to answer the question but in this case the physical resistance the pulling away after a justified grab of his wrist that ratcheted up the level of force that was needed that you do believe that stepping back is the same as being aggressive or violent or belligerent i just want to i think when you couple the stepping back and i believe the district court characterize it as pulling away from the grab when you couple that with the language that he means to get the f off of me i think that that does rise to the level of aggression definitely physical  hesitated and he couldn't find a tank up on his belt and so he released them and so they're grabbing him from behind as well as ultimately placing the handcuffs on mr fuller those were the only uses of force by officer white and i think based on looking at the section of the fisa opinion that dealt with the non teaching officer the use of force there was significant much more significant than force that offer so why he was in our case there the officer slam less bills or fees whichever pronunciation you prefer but in that case this court approved of the officers slamming of the plane into the ground given the fact that officer confronted and i think officer weiss actions are significantly less than what was approved in the stills case and also if you look at the anthony vs coffee county case as it relates to officer white what he saw when he  saw mr fuller pulling away from sergeant williams to any reasonable officer that could appear to have been a situation that could have asked the lady quickly beyond the initial physical struggle that was there and under the precedent of this circuit  begin with a discussion of officer white in this circumstance because the the justification that officer white articulated for his actions vary from what has been represented in the appeal of what mr white testified to in the court below was that he observed mr mcwilliams attempting to physically handcuff mr fuller that is to say that he had his hand cuffs out and that he was attempting to place mr fuller's hands behind his back and that when mr fuller then pulled away that he believed he was resisting arrest well those facts are all disputed so it's not true i mean at least according to the facts again i think there is a dispute that did not have there that is a disputed fact mr mcwilliams claims he had handcuffs out the judge observed the video and did not see the handcuffs mr fuller testified taking place they testified that mr fuller was relaxed and he was calm at the time that mr mcwilliams grabbed his wrist without any warning or any announcement that there was an arrest about to take place so i think in this case and he testified that he observed as i said sergeant williams with his handcuffs out and he heard him instruct mr fuller to place his hands behind his back and attempted to handcuff him when mr fuller pulled away  that is not consistent with the testimony of other witnesses and certainly not consistent with mr fuller's version of the facts and i would also say your honor in addition to this it's not just what officer white saw when he reacted but if you and i know the op look at the video and it's not the best video there's no sound or anything but one of the contentions we made in the court below was that officer white it wasn't just a matter of not being able to get handcuffs to handcuff mr fuller he had ten seconds to do that while he held mr fuller mr fuller testified that officer white was pushing him forward towards officer mcwilliams so argument below was that mr white was merely positioning mr fuller so that he could be taped because during this time officer mcwilliams had his taser out pointed at mr fuller and mr fuller said to him you don't have to do this while he's being held by officer white and at that moment in the video when you watch it also what releases mr fuller and mr fuller is immediately taste just a believe that is fairly accurate it was very brief i think towards the end of the order there's just a reference to officer white and mcwilliams together contending that multiple instructions were given to fuller regarding the arrest and getting on the ground i don't i don't know what he saw before that whether he was watching it on the video or whether he saw it when he came out of the back  room i want to move to to the extent there's any question about officer mcwilliams here i think as judge anderson has pointed out early in his argument depends entirely on two disputed facts number one that he was attempting to fists was in a fighting stance or an aggressive stance towards mcwilliams all of which justified the force that was used those facts are all disputed by the witnesses who again testified that mr fuller was calm and relaxed and up until that point i think it the testimony of the evidence is that mr fuller was cooperative he answered questions from officer mcwilliams he went over to the elevator bank where he was directed stand and he calmly pulls out his phone to make the text message and so this is to me this is similar to a case in cases like alston versus swarbrick or even the phil case where it's not so much about the attempt to arrest as it is an emotional reaction to mr fuller pulling out his cellphone because even after the incident was over also mcwilliams goes back to the cell phone at a point of contention that he was angry about him pulling out a cell phone or not putting a cellphone away immediately when he was asked to do so so it wasn't so much an arrest that was being done here it was about an emotional reaction to somebody using their cell phone was at the moment i'm sorry and that one of the factors that you take into consideration in determining whether or not excessive force by the officer well your honor also mcwilliams did testify that he believed a suspect pulling out a cell phone could pose a risk i frankly i don't know how under the circumstances present here when mr fuller is simply standing calmly pulls out a cell argue that the fact that there doesn't seem to be any factual dispute specifically has released a qualified immunity with respect to officer why that should give the court jurisdiction to decide the whole case on appeal and i did an adage in  verified that he did not have any identification on him although it was later found during the search incident to arrest and that establish probable cause for him to lawfully put him into custody that's under the case law as well as the mart serving the qualified immunity offense is not necessarily making sure that officers are here to best practices but it's giving officers leeway so that they can respond to rapidly evolving situation in the field this is a relatively short encounter only lasting approximately twenty seconds or so and the law should give the sergeant and as well as officer white room to allow for that rapidly evolving situation particularly given the fact that mr fuller did not have fuller was not just defied in pulling away and that is what constituted the physical resistance which justified an increase in the level of