reasons st the district court improperly applied a subjective standard when denying qualified immunity on mr bohdan th amendment claim the correct standard when there was no evidence of malice to know an awful touching mistakenly believed that mr bohdan was the st writer he's entitled to make a decision based on a mistaken fact and and even though stop occurred what was the observation and what was the perspective of a reasonable officer that warranted using a taser at all trooper horse and observed that trooper harshman interpreted that action as trying to kick start his motorcycle the motorcycle was off at the time and trooper harshman thought he was trying to get it going again and they were at the exit to go into the city and soon a communication between the officer and parent to him that the other officer was not going to get out of his car he decided to make sure that there was no fleeing he went ahead and deployed his taser an object of lee reasonable  officer on the scene would have concluded that based on the evasion of the other officers their reluctance to pull over for trooper hartson and the physical action that looked like kick starting a motorcycle and injected lee reason officer would have concluded that mr bowden and had been fleeing and would continue to flee so what's the justification for no warning there's no case law that i'm aware of that requires super harston to give a warning but a reasonable officer on the scene may have believed that prevent one where a person who is intent on fleeing when warrant would not be prevented from fleeing perhaps would be encouraged to flee more quickly and complete the arrest there was a need for one officer to stay in their car in the in the in the event that he fled so that one of them could be ready to pursue if he took off on his motorcycle when analyzing qualified immunity the district court didn't offer ocus on the undisputed facts and instead it focused on mr boat and assertion that he wasn't actually trying to flee and he was just trying to get his motorcycle in neutral and the district court should have considered the evasion of other officers and the reckless driving and the reluctance to pull over for trooper harston and issued have concluded that and objectively reasonable officer would conclude that mr the taser additionally it was the safest way to ensure that there would be no high speed chase horse and could have been run over or dragged if he attempted to physically remove mr bowden from the motorcycle  additionally there's no guarantee that a lesser degree of force would have brought mr barrett and under control finally while not dispositive mr byrd and de minimus injury are further evidence that the amount of and his e r report showed no serious injuries in fact he rated his pain as a two on a scale of one to ten on the day of the incident the various pursuing there's a dispatch record that shows that there had been some communication it doesn't transcribe all of the communication that had gone on but there is pursuing and if i may briefly rob wrap up and then preserve some time for a bottle even at the court concluded that the use of force was the stripper hoarseness still entitled to qualified immunity because there is no existing precedent that would put him on notice that his behavior was inappropriate additionally because trooper hairston had probable cause  bowden and because the right to make an arrest carries with it the right to use force to carry out the arrest there was no one awful touching and there's no evidence of malice especially when considering the t circumstances and for those reasons that the district court should be reversed because trooper harston is untitled both qualified and if mr bowden had actually taken off and then been tasered or otherwise force used against him that would have caused a great deal more injury thank you think the law is fairly clear on the two prong test what nobody cited our most our most controlling recent case my apologies your honor i was trying to get one of the older cases that have been around for a long time but are the about what seemed to stop once that was the video picks up we got him here to fifty five get up there's no radio communications from any of the place officers hey this guy is trying to fleet hey this guy is dangerous hey this is the guy that was rodney up and down the highway none of that we have a we have a statement in the statement it isn't if you want to taser him now's the time to do it the statement is and the court can certainly verify this by looking at appendix one hundred and eighty eight which is the video i apologize there was no other videos we asked for than discover who asked for it f l y and we were told that the other officers who arrived there after a raised his video so we're the only video that we have is what the court and the statement came right after we got him here to fifty five get off it was this is a radio we now we learned this morning neither neither officer was out of this one that when that was  disputed facts that judge wilson indicated in his as or that needed to be determined the medicine like it was not running and the motorcycle is not electric start motorcycle there would be no reason for him to be jumping up and down trying to kickstart a slowed down he was moving his his left leg up and down trying to take his motorcycle between st and nd gear and neutral so that he could put the kick stand off get off of the bike so why couldn't a reasonable officer perceive that as being an attempt to put it in gear to sleep well number one the motorcycle wasn't running number two there had been a significant length of time a delay from the communication if you want  know under those circumstances with that long delay with the fact that we got him here at fifty five get off the statement was well we think we got him but the kid jumping up and down i was motorcycle calm for backup this kid's going to he's going to bolt mr bird and never bolt and he never tried the past as a court when in the video he never tried to pass that vehicle he thought that he was being stopped for speeding he tried to get in front of officer harshman because that's where most people normally stop for speeding but he ended up pulling in behind him gets off his motorcycle the motorcycle is not running it either died or had been turned off but it was not running and yes he could have started it up within a matter of certainly within twenty four seconds he could  next county by the time his officer got out of the car he had no race to do any of that at that point time he had done nothing more than gone over the speed limit should there have been a warning perhaps i don't know maybe get off your motorcycle but you know you can hear on the video the taser being shot and officer hussian house and letting him at that point off off kind of like bang bang hard to will shoot was because this gentleman is maybe house and thought this gentleman was was toying with the police he was he was intimidating the police he was there had been chasing this gentleman who still hasn't been t d you know allowed this type of constitutional deprivation to avoid what if you know what if he had gone into the city what if the police had followed him you know what if you know a group of nuns stepped out in front of  not the case here and we're not talking about what else we're talking about what actually happened and my client was taste twenty thousand volts of electricity he had to go to hospital one of the probes was within millimeters  testified during his deposition that as part of his job he had to be tase and it was extremely painful left scarring on his body but we have back questions your honor and that is what was jeremy   what i'm going to do i'm a jump out of my car and try to correct the situation immediately that's that is a significant gap and it also takes us out of the split nd decision that officers are often faced with this got up to a half a is to you and you can hit him in the back and it's going to be safe or he's attempting to flee that is not the statement the statement is if you want to taser him taser him it's payback and that's all it is it's payback who who made that statement into who reasonable doesn't really matter what he said i think it does matter shows shows malice shows and shows before thought yesterday i think we still have a an objective lay reasonable officer would not have done that on the circumstances if an panache or thinks that someone is playing and has fled and can flee that may or may not be but my point is the statement just behind mr barrett and with their lights on and a reasonable officer would have concluded that he knew he was being pursued and  physically moving in the way trooper harston described mr bohdan admitted in his deposition that he was moving in that way and he explained that he was just trying to put his motorcycle in neutral but triple harshman didn't know that at the time and a reasonable officer certainly could have concluded that he was trying to either start the motorcycle or put it in gear to take off and i can't but if you have twenty four second clue taking the actions that looked like kick starting a motorcycle and he was making the decision whether to keep waiting for the other officer to get out of the car trip or horse and testified that it felt like mere seconds to him