sympathy and had to live happily with police officers having to go into strange situations domestic disputes of not only in domestic dispute a nasty domestic dispute or maybe one maybe both why he's able to go after him in all things because he's in his own home and if it's consensual encounter presumably you're saying he disobeyed an order correct and so that justified him even starting to you know starting very specific findings and printed particular about whether he was freed up one year around whether he was detained then she said the parties disputed she listed three things mr lee actually and whether he announced his intention to get a glass of water and then she later does in her actual findings the district court says both defendants tucker and o'hara will testify that mr lee was not detained at the time he walked through the kitchen that the defendant tucker sternly not to go into kitchen because not on my point and you assume in all of your briefing that that order meant something and that meant something because it was a seizure and she very clearly found there was a question  fact about whether he was seized and and all of your officers from what i could see testify that's where she got that question in fact because they testified yes it was a consensual encounter and this particular off to them said yes he was in se investigating the crime i think i care about whether he was free to roam about his own home and that's what the district court cared about to this officer and the officer there's a question of fact about whether they were going to arrest him what they had decided that's a question of fact to those findings i'm asking your whole grief seems to be premised on the fact that he gave an order tucker gave an order don't go into the kitchen when she found first of all it was either a request or an order and there's definitely facts to say that and she found you know not clear at all whether he would seize that point or whether he was free to go into the kitchen and i think the officers centrally confirmed that and so i don't right but what i'm saying is that the district court also found this was on the stupid deputy talker had seen the knives in the kitchen and perceive them as a danger what someone's rapidly moving towards knives and being uncooperative saying whether he gave an order is totally controverted and even by your own officers question whether he gave an order or he requested it because he didn't think that the guy was se think it may be that eventually your these facts prove true and maybe it did turn into a seizure at that point but there's a real question of fact about whether that order was an order or request and whether he had to comply with it or the officer thought he had to comply with it and so that one that's our that's our jurisdictional problem now if i'm a bad guy and your a cop and you see me reaching in here because you think i a lated all over the place about whether he ordered him or he requested and one of your other officer says he didn't order him either and then in fact this can a continuing consensual encounter so what i'm saying is there's a question in fact about that i'm not sure even that his mr lee's own awareness of whether he was detained is important the trial court seems think it was but your own officers vacillated about whether it was an order or request and whether he sees or not see so it's not something we can assume now fair enough but even if he had said nothing he took action to prevent him from going through the knives because it was a dangerous if he proceed if that danger if the perception of danger is real she grabbed the knife it would have prevented the shooting my point is the perception of the danger of the knives in the kitchen is imminently reasonable we know that if somebody who is drunk and who is a criminal suspect who was one and they're struggling and you're not shooting that the punch you just touching with and they drift away and you do a second and they jerk away and by the time you get the third to close enough we can hold them and take them to the ground yes it is  rightly pointed out there are less factual disputes and defendants greece relies most entirely on factual arguments to try to get this court to assume that qualified immunity is appropriate as not an appropriate question misconstrue that because they want it to sound like a violent encounter but it really wasn't if you look at the facts of the case there's no injuries there's no allegations of anyone striking one or another what happened is they got into an argument verbal e my client tried to leave the house to go out and get a the cigarette from his vehicle the wife thought oh my god he might go out and try to drive walk after he's been drinking so she goes out she blocks the door so he can't get out he's only got the keys then she are within the magistrate judge's findings i'm going to dispute that there was any kind of threat posed by by this man to these officers the belligerence is obviously something that it put your word of a label applied by the let's minimally describe it and he just gets up and strides toward the kitchen what should i did as that in my chair and hope that he doesn't get in i know you're out of that that the parents present a false dichotomy of whether they only had two choices right this is not a situation where somebody had to either use violence or sit back and wait to see what happens this situation where hip the defendant officer specifically tucker had a myriad of options that were nonviolent right what's the first thing  that suggest there was no imminent threat even if the officer thinks oh my gosh there's knives ten feet away this man might be going in there to get a knife you have to wait to see if he gets the night before you present eminent threat well it took three officers to subdue him in aggressive towards these officers never tried to harm them kick them strike them never tried to threaten them even as he's been beaten the defendant other times i don't understand i guess either the question the thrust of the questions or the answers what difference does it the use of the improper use of tasers and that the situation here was that even if you get to the point where the officer is holding your client down that they went too far war yes and in the second question of course the extent of the force used the exhibit the force is not just three times by its he's right it's for close fisted strikes by the other two officers who jumped in also who did not give any warning or explanation before applying force and of course defendant tucker who began the use of force by tackling him ramming him into the cabinets and then tasering him three it's not just three times three pools of the trigger for a total duration of questions is a go to what are we doing we're looking at what an objective reasonable officer would do and then overlaying what happened here with whatever it is you have that is supposed to show that as clearly as st and a surprise manner that's exactly what happened here mr lee's back was to miss to the fence tucker tucker jumped on his back rammed him into the cabinets and then of course the rest of the force into to mr lee during that entire kind of didn't have control over  body is being thrown around between the cabinets between the refrigerator he was enjoying any i think consciously so the idea that they were just trying to subdue him or they were just trying to i guess hold him or arrest him is ridiculous to your point the case is apply precisely because this is a non aggressive mid back to misdemeanor who's out of force applied to him without warning or communication right  you have to warn somebody before you use force right it's not just even if you give credit defendants assertion that there may have been an order and of course for arguing it was not an order it was very explicitly a request then that should have some warning right that should have some some um some suggestion that the other might use force if there's not compliance but that's not part of that right defendant tucker led to the use of force because the earlier encounter my client  times on him they'd batter them between the cabinet so they don't know what's up and what's down that's what happens in these kinds of cases the defendants have conceded there's no aggressive movement there's no possible justification the only thing they rely on is this a stapled you're under investigation sit down if that was the order and he violated that order why couldn't they do that he was they absolutely could tackle him if he violated that order and tried to walk up in the kitchen regardless of whether they said there's a knife in there the question to me is what was the circumstance these officers karen lee hamilton testified he was free to go he was he was he wasn't the team which i and then there's some inconsistence has sworn that's my point is i we are we're stuck with the facts as a district court found in the district court sense controverted whether he was free to get up and walk rams own home and go into his own kitchen and it's controvert of the district court said whether the officer was requested and said the officer even said he said please or whether he ordered him because he also said at one point these are just use of facts so the court does lack jurisdiction but i'm going to the other side of that i know that the court may want to hear the substance of the case so i want to get away from that so you understand this is not a circumstance where mr lee however drunk or belligerent you think been and cursing at the officers never was aggressive to the officers in great shape or form you see then page five of the of the appellant's reply brief they admit that he was never aggressive that he never threatened the deputies he was consensual encounter which just makes the officers use of force without any warning doubly wrong right it's not a situation where they told them hey if you go in the kitchen i might have to taser you or i'll have to use force or i'll have to take action in any way shape or form it completely lacks that warning and that's what the data set in case is wrong and casing morris cavanagh and photographic you can't just jump to the use of force you have to give a reasonable warning to demonstrate that you are in for are you are issuing a to man that must be followed how far was the from the living room couch to the kitchen the living room couch to the kitchen is three to four steps that's where the records of all of this disposed to case right because the distance between the threshold of the kitchen and the knives which are on the other side of the kitchen is somewhere around ten feet right so we've got three to four steps to the threshold of the kitchen but there's another ten feet that mr lee would have to go to grab a knife brandish the knife threaten us with a knife and then approach the officer another ten feet back right you have to wait for some sort of imminent right the opposite or is purely speculating that mr lee might go to the other side of the kitchen and get a knife and remember th with them arguing that there was any kind of eminence and if you ask what yasser should have done he should have waited for any facts to suggest there might be a threat and that any threat would be imminent and he waited for neither of those things he didn't even  warn mr lee that if he believed that you know the knives on the counter might be a threat or might be perceived as a threat which just makes the surprise force even worse mr lee had no idea this was coming it seemed from behind his back right the only didn't want to go in the kitchen and so he's thinking in his mind of course this is a consensual encounter i've never been told i'm being detained this is the kind of person who wants to assert his rights and you know the supreme court in ten circuit has repeatedly what this court and reporter said he has a right to do is really problematic what you should do is hold the officer responsible for reasonable commands during a police encounter particularly when you change