reminder as you are not permitted to photograph or video this proceeding as well please remember that when you are talking about the record it is helpful if you give us the record side we try to memorize the appeal from a memorandum an order from the district court in regard to an excessive force case i'd like to start by saying that my client i represent a man who obviously made some poor decisions and regards to the night in question and we're not here to see sort of some indication in regard to his choices but to see that he's also not punished as a result of them a lot of the things that transpired in regards to the facts of this case  going away from them that's not the subject of this case we did not bring suit alleging any kind of excessive force associated with the shooting now maybe that might have been different if he was harmed by it it just suffered some property damage as a that how do you respond to that i think you know i mean obviously i went back and looked at the complaint and st of all that's the writing of my office and not necessary my client it wasn't under oath just so the court is aware my client don't i don't see anything that's contradictory in regards to the declaration when you compare it to the complying when you compare it to the video there is really very little i mean there may be some minor differences in regards to you know by feet or somebody where they initially come up on him but overall everything that's in there is you know quite frankly the fact issues so i cell when he gets to the dance or whatever he claims he gets out puts his hands up and i mean i watched that video it's quite clear that's not what he did he got up and ran to the forest which is what the complaint said he did so how do you explain that contradiction you know i memory i mean quite frankly memory in creating the declaration i allowed him to say what you recall it is true that he did go to the front of the vehicle and it may have seemed according to the complaint that it was immediately in front of the vehicle but it was in front of the vehicle you know all the events did occur right where he said it was just a sort of a maybe an interpretation of exactly where that was but no i don't think he ever went so that he just got out of the vehicle and he went to the front of the vehicle which is what we see on the video as well i mean well i say we see it on the video the videos hard to see locations and you the track and ran around to the front of it i then put up put his hands up i guess he means my hands up and said you got me me then read up to me and then he was writing towards me and then you know so that sounds like he's still by the track and we know he's not we know he's quite a ways away because that's the other half of your argument is you can't really see the actual beating because he's not  pleading and crying to the officers and you hear the officers and i put in my briefs that he said several times that or it's more than that i think it was probably at least a dozen times and various factions and you never see anything on the video especially afterwards all they do is carry my client about why did you run they never are about why are you fighting us why did you put us where anything of that nature so you know what we hear on there is that my  pleading with the officers and it obvious anger because that had to a lack of a better term chase him down you know and so that's where we stand the case is it is it fair to say that  and from that made a call as to what happened after they left the view of the video is that is that a fair accusation of u s air i think i think yes part of it i mean i think it is i think there is definitely a concern that the district or in making a determination that there was what they consider errors or differences between the pleadings or the affidavit in the video and using parts of it d to discount the entire ty of it and and i think that's where the problem lies in part is that the core really made it a billy determination especially when he made the decision that he was continuing to resist arrest that ruling and send the case back down with instructions that district judge not rely on him on the videotape three after that they might differ trying to run away  to make edibility oh i think that would be a fair question i don't know i mean obviously the district courts or did not address certain issues and i laid out the ones that we did not address you know whether it be or you know the standard so you know a lot of the same but i really think that there are a fact issues that preclude the judge's opinion at all i mean and this may be a case that i try and lose a jury just might not like mr might not like his judge early in the case would be part of the jury's findings as well yes the point of the circuit right now yes i would agree with that that it is a put in i'll stand on my soapbox and say that i don't know necessarily that's the way should be but but i would not be concerned in some force used you know if they had tackled him and he had his head on a rock or something of that nature but that's not the facts here i mean i would understand that but what i don't understand knees and they are cracking him in the face with a flashlight breaking his or breaking his nose break in his t that's excessive in and of itself and it's more concerning you know all the cases he had other weapons i realize you're saying he did and i get that but the question is the sort of objective view that police officer has is that he is probably are does that change the valu n if you will of the excessive ness and at least the qualified immunity the excessiveness way in i think somebody has you know he had a rifle in the drug you think it might be armed and and dangerous while you're sitting there in this forest you know i think that's kind of a red herring you know the state of texas with open carry i mean there's not a truck in my neighborhood and i have some sort of a rack for guns on it and so just because he had a wea wouldn't make that type of force valid it just wouldn't and it doesn't stress test or the proposition that this kind of force is not subject to qualified immunity when somebody has bled and is bill has reasonably believed to have a weapon what's your best case on that i think it's asking your kind of asking for two different cases two thousand and twenty it's a it's a you know a really good face in regards to the same types of issues that we have here in addressing a lot of the reasonable the standards in regards to the excessive force some sort of use of force is stopped then that's where we judge the excessive force from and so in this particular case and i'm coming down pretty close but in this particular case we've got to assume the ations that i think that were usurped by the district or an attorney you know will see what time tells but it but on summary judgment analysis i do think the or it was wrong and i think it did was made in some improper credibility determinations and it was sort of just creating backs that otherwise for in the record do you think the videotape is helpful at all for this yes i do i  or saying the officers is a pleading for his life and you can hear him crying and pleading that's all you hear so i think that for the purposes of summary judgment i think the video is important but i think that understand the allegations here the officers at the moment that prevention beat mr sheen fake in the face with a flashlight and so my question is does the video garner that from the video you cannot video a visual but what you can garner and how the video a and supporting their in title meant to qualified immunity is the audio what the video clearly and that's where the plaintiff that's where she fakes case fails really it describes an event that didn't really occur on the on here how does that how does the you're saying that the audio if i listen very carefully to the audio i'll be able to glean that there was no getting in the face with a flashlight correct i think what she will hear is the officers there is no hits or blows on that audio you hear officers struggling with shi it to maintain control of his hands and even after the incident totally different description than what has occurred and the complaint and of the declaration you will hear so the declaration mean the declaration contradict understand you might argue to a jury that there jury should find that that happened and you might be able to draw some inferences from maybe something in the video maybe from the audio but the cases i'm familiar with is e being in the face and flashlight and further he says you're going to kill me he says he provides a different description than what occurs on the video you can see both right beside each other running next to the vehicle and then around the vehicle and then he describes an entire it sounds like it's a long period of time but if you actually go back and listen to the audio at tw you hear you see them run off screen on the camera then for multiple seconds almost a minute later you hear them running you hear them breathing and you hear them running through the woods then by the end at tw you hear and the other officer who has arrived and gone out there to the saying say are y'all all right in between that less than two minute time frame you hear the officer say the same thing repeatedly give us your hands and stop resisting over and over again that's that audio is different than the description that is given in that declaration i haven't listened to that video what one thousand times it seems like and i have not heard any pleading begging  crying for his life i hear i scuffle him suing clearly on the audio i hear the officers repeatedly saying give us your hand and give us a stop resisting arrest and then i did not find it so clear to listen i will try again given what you just said that you got that really loud horn going on and on and i could see i had a nationally loud voice so probably on any video you would hear me and i know people with audio on this video we certainly didn't see it i think is the point they were making and so what we did see is pictures of him bloodied face so something happened to his face and he you your honor it's where i think as mr gale pointed out earlier i think it's just inconsistent if you continue through the record you actually there is an explanation that's given he said there is no explanation given as to why apologizes for the incident at three thousand four hundred and forty seven dollars and then busby explains to him that when you are encountered with the police you must give them your hands and then he says one of his hands was underneath and that get those are all key factors in this case as it goes exactly to the totality of the circumstances and what the officers face that evening you can't isolate this to one specific instance without looking at the entire traffic stop and looking at the declaration and of the place you know i agree that the officers being concerned about the fact that he might have a weapon that he was running away all of that would give them the right to give him some but let's imagine i'm not saying this happened but let's imagine th it showed he was completely handcuffed and even his feet were bad and then they just started hitting him with the flashlight no one would say that wasn't excessive force because by then he was probably so the problem is that  can't so that's to me the hard part here is where is the evidence one hundred percent shows that he was continuing to resist throughout the entirety of the meeting that's bite case it was a pursuit of someone at the time at night who had had a knife and had run from the police officers and at that time the chor says that they gave all the favor to the plaintiff assuming he had dropped his knife he laid flat on the ground and like a parachute man just before being bitten by the police dog he did not struggle he begged for the dog to be removed and he claimed that the bite lasted for over one minute in that case the officer scott qualified immunity and what the court what the th circuit specifically said is that the plaintiff wanted to limit the view of all the circumstances that occurred that night into a very detailed thing what they left out were several key facts that the chase was that night that escobar hit from the police that they thought that he was dangerous and that they didn't know whether this was some sort of ploy and that he was ready to snatch and run again that's the exact same situation we face that night we have two officers who knew very key facts of that evening which are different than kind of streams and streams of blood and scars or scars on their way so i you know is different then boom with a i'm kind of scratch your head like that so i mean he says he was founded by flashlight and they said they used the soft and then the heart of their hands and that's exactly what that the issues it differently because he can't be seen when he is escorted back to the scene and there is a stream of blood a single stream of blood i don't i don't know any other lot i can't i can't really show this but i'm real yeah the kid at it won't show up on could show it he all but where you just got blood everywhere and it's not just the bleeding but you can see that there are it's almost like scissors in his head so i mean that seems more consistent with the flashlight than  well regardless of that your honor even if you gave that credibility argument to the plaintiff there iced mr shafiq i still think that you're not looking up the totality of the circumstances that were involved the split nd decisions that are required at that particular moment facing those officers and no one would even consider those to be unreasonable that split nd decision was that at a weapon as far as they knew  did they need to use force gives about what force did they use and when and how much was needed because they're denying the blast light so ringback this isn't where they're saying yeah we had to use the black light because he was pulling a gun on something like that they're  not agreeing with him on the bat and then debating how the law applies to that they're disagreeing on the boat and so unless the facts are irrelevant and we have a problem so can you tell me why it's irrelevant whether they hit him you have to look at the totality of the circumstances that they face that evening to determine is it unreasonable that when apprehending a suspect that has attempted to flee twice not just once he's attempted two different flights to escape from the police officers he's knowingly given a false thing and he had a weapon in his vehicle at the time the officers security and safety at that point not only him apprehending him but making sure that he is handcuffed is different than the necessity of the force used because i mean this could have been a very different circumstance and there's a string of case law out there during pursuit chases or deadly force is used and de officers are entitled to qualified immunity under deadly force cases this is not an this is not the circumstance even if you arguably saying that the plaintiff says that a flashlight was used this is not a deadly force case and though those were a lot of the cases that were cited by the plaintiff in his brief with some deadly force cases here and that's not the case of what we have here these officers did not escalate the necessity for force to any level of deadly force they used measure just judgment and attempted to have a tempered response throughout the entire process of this altercation and that's where the pool case comes and it was a different type situation on the pool case than an escape where someone was attempting to run from the officers at two different steps here here we have very specific facts krasinski lead chased into the woods and that audio although it isn't a body camera understand that and it doesn't show a clear video that audio just disputes and contradicts even what is contained in his declaration i want to talk about a couple of the other things that are in the declaration that he says he gives an example of a portion of this happening before even a ride well that's not even depicted on the video buzby increase since both were leading chase at the same time there is no audio anywhere on there that the other officer showed up and yelled for that's enough the other officer can be heard he says are you all right it's momentarily after they finally catch up with him and then he also presents an entire different situation of where these officers then i mean mr gale actually said she heard hears anger and hears something different in these officers voice just because they had to chase them in the woods that's not the allegation that's not even what occurred in this case he says mr  that he was drugged out of the woods because he was stumbling and have so many problems walking that's not shown on the video at all actually it shows that he's escorted out he's walking perfectly fine at three thousand and fifty of the video and then just right after that i think where the circumstances really show in this case is how dark it is that night how sick the brush is that there is a fence down officer busby a media at least falls faced st after he's walking back to the video at three thousand two hundred and fifteen at the time stamp just to go look for the rifle and any other potential weapons at that point and like i said earlier i think the video is very audio it's very clear that the plaintiff then apologizes for what happened and busby explains that you have to give your hands up these are not officers that are angry these are officers that are very professional they're giving full explanations and one of the explanation of this when you have one hand underneath you you have to give that up and that's where busby and cresent asked this court to affirm the district court's decision and not take an approach of trying to piecemeal and freeze frame everything under that graham prohibited statement of two thousand and twenty hindsight where we actually look at the totality of the circumstances and how each one of these unfolds how it rapidly these unfolded and how the i mean when i think the circumstances in which it's being used and the manner in which they're speaking to him i mean it's obvious on the thing that he is saying something to them and they just don't care and that they're using the flash i think for the defendants the biggest concern is that the just dance around the facts and say by use the force that was necessary under the circumstances and they never once give any instruction or any kind of evidence as far as how these injuries occurred they don't say that he accidentally hit a tree rude or a fence post or anything else of that nature they say nothing so the only evidence that the district or enter this car ad is the declaration of my client and the obvious injuries the result of having a metal plate but in  immediately went to the use of a flashlight to break my client's orbital bones the nose his cheek and his teeth you know that there is some evidence in there that because i think they have to admit that there was some fisticuffs used but they don't them but at the same time the evidence really doesn't seem to support them but again that's that's author for argument of counsel at time of trial and the credibility determinations are made by the jury in regards to what was necessary and what was reasonable the couple of minutes of his art you know i mean i guess it kind of depends on the particulars of a case i mean we can come up with a many different kinds of scenarios where there is no lapse between each would say level of force t you and or the interaction between the officers but in a case in which it's alleged that regardless of whatever the chase was or how long it was or anything of that nature or allegations regarding you know i mean let's step back for a  that have made the shots you know so you can't you can't shoot my friend you said it's a cation but i get on all the cases where you have here at the end of the day it is allegations that he was in