the decision went straight to the clearly established law issue i would invite discord to address at least the whether or not there was a constitutional violation because of the pending appellate jurisdiction issue if there was no constitutional violation you township then it's not libel either with respect to the constitutional issue i think we have to address it under the context of what the sixth circuit has said constitute excessive force in the first issue was what was a severity of the crime now in this case the intelligence officers were dispatched to a v f w hall for a disturbance which the trial court judge said was  very severe crime actually the plaintiff was intoxicated was involved in a fight at the v f w hall then when the officer ventry the township officer arrived at the v f w hall the plaintiff tried to escape r away from him and in fact was convicted of resisting arrest so we have a resisting arrest crime in addition to the disturbance crowd and i think this court has decided in several cases gaddis versus red for township and personally versus kitchens that wouldn't play if it is resisting arrest the crime was of moderate severity so i think the judge barrett said really it was a minor crime the disturbance but i think when you add the resisting arrest which in  fact he was convicted of in this case are the resisting arrest i mean with regard to the disturbance did the call or any other information say that baker was the person who committed some type of assault or something you know all the only all the calls so was there were the servants at the v f w hall and what happened is up but from the officers point of view all that he knew was that the person rayon when he saw the officer went back into the v f w hall exactly he started to come out then he went back in came out went out the back door and then started running away so officer ventry began chasing him tommy baker testified that he knew officer ventry was chasing him he knew he was fleeing from the police an officer eventually taste him before they got to the house and apparently it didn't take because booster baker continued to run home now there this excessive force case does not involve the first hazing the plaintiffs have conceded that the first hazing was reasonable but the plaintiff also pleaded no contest and was convicted of resisting arrest so i believe on these facts we have a crime which is of moderate moderates a varity then the next question is was there any threat to mr baker or to the officer or to anyone else now we have a situation here where mr baker was struck and he was point one seven eight he'd been drinking for some large period of time he acknowledged that he was too drunk to drive home and he started running home as fast as he could and was supposed to look at a qualified immunity analysis from the standpoint of what a reasonable officer would see under the circumstances well officer ventry is following baker he taste other than the call for the disturbance the officer did oh that he was point one seven eight at that point he might have suspected he was intoxicated only seem to be able to run fairly well it was running pretty well but the officer did not know the extent of the intoxication no although i'm sure he suspected mr baker was intoxicated but mr baker is running away as fast as he can and runs into this house there's no there was no comment eventually did not know whose house it was that mr baker ran into he said he really was disorient at the time he knew the good there was thirteen thirteen something he was trying to run the license plate on the car so he did not know what house mr baker had run into our being a car in the drive car in the driveway right and mr baker's car was back at the b of w hall so obvious or ventry had no idea what mr baker intended to doing and said if he were really scared he would have called for backup he would have waited at the front door and not go barging into a house but he did have backup officer daniel smith was there and she was following him and she went around to the other side expecting that he would come out the might come out the back and then when she heard the tasing she came around inside the front it wasn't so much a matter of him being scared but the situation was that there was a person in the house there may have been a crime committed in the house an officer eventually didn't know what the situation was he was disoriented he didn't know where baker lived and he didn't know what was going to happen inside the house he followed the baker into the house and at that point in time problem with his being in that house she didn't say anything at all and he knocked on the door she opened the door he was pounding on the door she opened the door he went inside the house and then he's facing off with mr baker and mr baker who had been running away for probably a minute a half or so stops turns around and is looking at officer ventry and at that point in time he's standing still and i know we have to accept the plaintiff's version of the facts  purposes of this motion for summary judgment at that point in time mr baker is standing still but he gives no indication whatsoever that he is surrendering or that he intends to stop resisting arrest or stop running away and what happened  baker might go into the room and get a gun or something else and he wasn't sure what was going to happen well but you have to take their contention and i believe that the door was somewhat open and standing there freezing him you can't say something like well am i going to have to tase you again or but we've done running or something like that you have to immediately where's the need for force there  jennifer jones an officer eventually said he did say that but let's not take it if you take it for what mr baker is saying he has not stopped running away and he's got a room and open open door right next to him i don't know how you turn around and stand and face somebody and run at the same time ok so if he's running away and he stops momentarily and turns around and is facing him he doesn't say i surrender he doesn't get on the ground in fact he was intending to go through that door he testified he was intending to go through th door once he goes through that door then the police officer has a real problem because he is separated by a door from the plaintiff and the play of could have a gun in there he could have anything else in there so the officer doesn't want him to go through that door now if you look at defendant's exhibit three which is where mr baker wrote down where the parties were at the time of the accident or the time of the incident when he stopped and turned around mr baker is standing like this and mr baker says he's standing in the middle of the he's standing like this the doors to his right he says he's very right the middle the hall about two feet away from the doorway officer ventry is looking directly at him here so the stairway is up ahead bu ten feet back the stairway door is up ahead of him into the left there's no way of his revenge we could have seen that those were stairs he says he had his flashlight from the taser on the plane ok so he's looking dead  wanting to see what the plaintiff is going to do next and he's concerned that the plaintiff is going to go through that door and then he's got a big problem player said it was his intention to go through that door it player said he had guns down in the basement which were through that door now  i know he was headed down there he testified it was his intention to go downstairs yes but did he testified that he did not intend to stop he testified he intended to go downstairs so  thought he testified that he did not move at that point i mean whatever intent it was it was mental as i understood well he stopped momentarily well he stopped he did not move or attempt to go down the stairs except he turned before he was taste that is the point that i did was he describing his intent before he was taken he testified that before he was taste it was his intent to go downstairs he stopped for a moment by the stairs by the room stopped for a moment did not say he would was going to surrender or anything like that he said it was his intention to go through that door down the stairs by his own testimony he turned toward the stairwell before he was taste  and i i read it as he said that he only twisted his body as he was teasing me whether you read that is because of the tasing is that are we talking about the same sentence at least y body as he was teasing i thought he said just he said he twisted his body immediately before he was tase was the way i read it and i think he i think what happened is he said the first time as i was being tasered then he said later it was before he was being chased it was just before his taste so i guess the issue is and this will go toward the clearly established law issue as well because what this court has said on the clearly established law what the court s is the question is whether a misdemeanor fleeing from the scene of a nonviolent misdemeanor but offering no other resistance and disobey no official commands has a clearly established right not to be taste and the court said he did not have a clearly established right not to be tasered now this person by all accounts mr baker was nonviolent he was fleeing he had stopped only for an instant orse couple of seconds he intended to go through that room officer venture you know when we look at qualified immunity was when you say he had stopped only for a few seconds the officer had not followed him into the house he had been in the house for some period of time so he doesn't see him run right at the mo at even taking the best on your side he's twisted a little bit right it's not like he's running an stops momentarily well he said it wasn't the real problem that he could have said stop or said something and instead he tasers isn't the crux of the issue as we read that interaction i would agree that's the crux of the issue but looking at it from officer ventry standpoint which on a qualified immunity munity analysis we're supposed to do giving him the benefit of the doubt whether every reasonable officer would have known that he should have been tase we have a man that had been running for at least seventy five seconds more because it was seventy five seconds between the tasing who stopped momentarily turned around to look to him next to an open door to door was open and who knows what was in the room so we have a situation where officer ventry from his standpoint thought he had to act immediately to stop him from entering that room and that's why he was to it and that's why we don't believe there was a constitutional violation or a violation of clearly establish may please the court my name is jennifer branch in along with our bare hartstein we represent tommy baker who is the plaintiff in this case i think the discussion you just heard shows that there are many material facts in dispute which is why this court doesn't even have jurisdiction to hear this appeal the defendant is still arguing whether or not mr baker was fleeing before the tasing it that is a material question a fact that must be determined by the jury this case should not even be here to be decided but if we were to look at all the facts that the plane has submitted the law has been clearly established well before two thousand and eleven that a person who is not fleeing not resisting posing no threat him that was in two thousand and ten when this court ruled that that was excessive force now but at best you would have to say it seems to me that mr baker was no longer fleeing he certainly had been fleeing and and so when the officer followed him into the house he was following a fleeing person yes i would agree that prior to anybody entering the house that mr baker had fled after he'd been tase the first time before the well his testimony was he didn't know the officer was chasing him and for a crime or that he wanted him never heard the officer call out he did feel the tasing he fell down he got up and he ran home at that point he was fleeing i would agree however he got inside his home he closed the door locked the door and this is the detail that the defendants have not accepted as a material fact from the plains point of view mr baker was in the house and he was muddy and wet because he had fallen in the woods and he wanted to go downstairs and change his clothes before the cops came because he figured they were going to one interview him before the officer entered entered the house he testified he had the intent to change clothes his clothes were downstairs in the basement once the officer entered the house he didn't move he stood still in that hallway in front of the open door to the stairs that was lit that everybody who looked at the photograph which is exhibit seven in the depositions testified you can see the hand and you can see the steps it was clear that that was the stairs even officer venture he testified in his deposition that when he looked at exhibit seven that shows the scene but he could tell that those were stairs taken from his vantage point yes it was taken from officer ventris point of view while he's standing in the living room looking at mr baker who's standing in front of the stairs and that's exhibit eight in the depositions and mr ventry looked at both of those photographs and in fact testified eight the mr baker was about a step behind where he shown in the photograph which would have shown even more of the railing and more of the step so the question about whether officer eventually could see that he was standing at the top of the stairs is definitely material fact this in dispute is a credibility decision really because lights run everybody who looked at photographs could see it the chief of police the training officer everybody can say yes he's on an elevated surface and when you look at totality of circumstances under graham and you see that he's standing on an elevated surface even if you were fleeing it would be excessive force and that's what officer mills testified in his deposition he's the training officer he knows and he's been training officer ventry admitted that he knew yes part of my job in a rapidly evolving situation is to stop and assess the circumstances and one of the things i look at is where is the suspect is there an elevat work i mean i guess i should say issues affect with regard to the door would include not just lighting and not just the extent to which the door was open but whether from the officers vantage point there was any evidence that there was anything by way of canine or weapon behind it right there was the only testimony about  being in the home was after mr baker's laying at the bottom of the steps in a pool of blood probable the up the officers went down there to secure the scene and while they're waiting for the ambulance they walk around the basement and they find a squirrel rifle in his hunting shotgun none neither of which were loaded and nobody knew about ahead of time mr baker clearly testified in his deposition when he was intending to go downstairs before the officer came in the house it was a change of clothes there was no mention of a gun there was no mention of a vicious canine in the home the officer did not testify that he thought he was going to get a gun and in fact if you look at the the argument that he's made throughout this case it keeps changing his discussion of where he shot mr baker did he shoot him in the chest or shoot him in the back that is a critical factor here and there's been no concession that he shot him in the chest at the time that he was in the house because if he shot him in the chest clearly mr baker was facing officer venture a white officer ventry taste him and he wasn't fleeing and running down the stairs with his back to the officer the officer says originally in his report that he tase mr baker in the back inside the house well where did you get the chest shot then everybody admits he was tasered in the chest that was outside before he came in the house wait a minute outside mr baker is running away from you and now you're saying that he was tasting this chest at a time and officer ventry has come up with three or four different scenarios of how mr baker got taste in the chest when he was running away from him he tripped he tripped over a a log he found he stopped he turned he stopped he turned me took a fighting stance every single time he's given testimony or written an incident report he keeps changing his testimony about the chest shot in the back shot that is a huge factor here because he should taste in the chest clearly he was facing the officer officer ventry did not rock into this house and say stop you're under arrest stop get that on the ground zero commands in tommy baker knew that the officer was letting because he could hear the front door open and he stopped three was and he put his hands down he offered absolutely no resistance he didn't fail to give any to respond to a command as he was given no commands and he stood still and the officer raised came in with his weapon already drawn everybody admits that soon as he turned the corner of living room and he sees tommy baker get tase and he starts just turn he obviously started his term because he's taste in the chest and he's cheese taste in the upper back behind the shoulder which is why at that point that force was excessive if you want to go in with all of the facts the plaintiff's favor than the finding should be the holding should be that is excessive force in his being clearly established as two thousand and ten the alternative for the court would just to say that the defendants are still arguing whether they're facts what the facts are in this case and tommy baker was for being and it's if that's true then this is a case where the court has no jurisdiction you thank your honour's for the appellants are looking at this case from the viewpoint of plaintiff and that's the reason that there's an issue here if we were looking at it from any other viewpoint from either jennifer jones or officer  ventry we have a situation where he yelled stop don't run and the plaintiff after the plane started going toward the stairs but the player says he was standing still and that's what we're stuck with even though he was twice the legal limit of alcohol in his system and w purposes of this motion for summary judgment but the fact of the matter is the plaintiff never did surrender now if there's no question of fact i don't believe about whether officer ventry knew that there were stairs to the right of the plaintiff officer ventry said he never saw any stairs he did not know there were stairs there officer daniels danielle smith came in and said because of the configuration of the house and this circumstances as they were on the night of the incident she could not tell there were stairs there until she got right to the top of the stairs but don't we in taking it from the point of view of the plaintiff's facts and given the picture which is am at best ambiguous or at worst ambiguous don't we have to say at this point for facts ok but we have a situation where the plaintiff is standing in front of the basement door the door is against him ok so the doors on the shoulder he's standing in front of it and those steps are over here officer  that a jury argument counsel or a fact argument that it may be we might think it is it is less than plausible that the officer can see the stairs but on qualified immunity appeals meaning that the judge below who apparently thinks that he can see the steers that we have to take that is that bets feel i mean i hear your adversary wants to say you're arguing everything but it seems to me this is the only point that that you're really arguing you're saying we have to take it that the officer couldn't see the stairs is that correct because the i don't think there's a dispute don't be a because it is that that your position is yes that we should take it as he can't see the stairs yes that's my position because the only factual testimony about that is that he could not that that would be true we don't have a photograph but the photograph was taken days later matter if somebody is saying this photograph was taken from where he was standing but if we're taking the plaintiff's testimony as true which we are you can see from the defendant's exhibit three it was not taken from where officer ventry was standing officer venture if you take the photo for taking the plaintiff's testimony we take the plaintiff's testimony and he said that officer ventry was standing directly down the hall from him this photograph was taken at an angle and that's what you can see into the basement steps so if we're taking the plaintiff's testimony which we have to do for purposes of this motion i agree he wrote the v and the x for he was it were officer bench he was on defense exhibit three in his deposition it is absolutely clear from that exhibit that the photograph shows a different perspective than what officer ventry would have seen like do you have a photograph from the point of no there's no photograph from stating exactly roughness or venture was because you took the photographs and they didn't take it from that point how did is there was this sketch marked as to where the photograph was taken from you kno to know where the photograph was taken from well you can see from looking at the photograph that it's looking at a perspective from an angle you can see it's not looking straight down the hall and we're defendant nope there was no testimony that that was exactly where officer venture was standing the testimony was looking at that can we tell can we see the steps well the fact of the matter is again we're taking officers we've taken tommy baker's testimony he drew this exhibit he drew the people on there and put them in their places and that photograph is from a different perspective it's not from officer ventris perspective and tommy baker at the time that was of the photograph according to the testimony was standing in front of the stairs ok does it matter whether he could see the stairs well they're saying that he knew he was on an elevated surfaces should have tasted ok but if you can see the stairs all the noses he's going into another room and that's a dangerous situation right except he wasn't he was standing still if venture was concerned he was going to go into that room but that's the problem that i have with if you look at it from the plaintiff's perspective he was standing still now the fact that he was  says i surrender if someone stops and turns around for a second or two that doesn't mean they're not going to lunge at the police officer a minute later there are second layer that doesn't mean they're not going to lunge into this room he said he intended to go into that room if he went into that room we have a real problem it only takes  a second to get into that room the officer testified that when he came into the house baker was running baker ran up into the house and into the house yes we know that but this is the officer testified that when he entered the house the officer testified that when he entered the house he saw baker open the door to the basement now that's a question of fact and we're going with the plan if he said he had already opened it but the officer testified he came into the house baker h the he was standing still they say he stopped for a second he was stopped as much as he was stopped from his point of view all the time that he and the officer saw each other he was standing still just because he he's not actively resisting any more stopping for you you're saying when you say the word stopped for a second it implies that something happened before that second well there as here we know he ran into the house and thereafter from his point of view he's standing over at the end of the hallway right the officer does not see him make any motion once the officer comes into the house from the plaintiffs facts on the plane  facts that's true but he has not surrendered and he does has this room next to him that he can bolted to at any moment thank your ar