crook this is a case obviously is the court knows a summary judgment the error made by the trial court is the result of being misled as to the content of a videotape which showed that my client leg was broken as a result of being struck by an officer mr cook the this supposed video is a problem it was supplied to the district court because a windows pacific application somebody who uses a mac or a unix machine or any other operating system has no means of accessing it how did this come about are you in the pay of the microsoft corporation at your honor the submission of the video was actually what i obtained a guess from file put in the record either you or the city could have insisted on a video file that could be read by any computer why i guess from my perspective and maybe it's because i don't use a mac but my kids do that it didn't occur to me as a problem it is a problem you now kno ok well and i would say in that regard your honor that is why i provided in my brief stills out of the video which in fact shows that are and i had i apologize i did not realize that that was not i've just find it shocking that lawyers would just assume that all the computers in the world use the windows operating so they don't and and we won't even talk about i pads i do or android or right most people these days see most of their videos on pads rather than desktop computers and no pad in the world uses windows i can tell you that i have a i do have a clip of it that i took video taping  computer that i could email the court it would just show that me not for me certainly not ok ok we need the real original evidence it has to be put into the district court record had the video the video clearly shows that the officer placed disc but on the back of my client's leg i have a nationally read  expert mr clarke who testified that the means used by officers rogers were inappropriate and excessive i likewise have medical testimony from doctors  examined my client as well as looked at the medical records and indicated that it would take a large amount of course or a significant amount of force t fracture in the mid shaft at the time this occurred my client was unarmed was handcuffed behind his back and if you watch the video which i understand now that is not available to the court in roll form that you can see that essentially during the course of this time period and there is a time line that's placed in the record my client is allowed to stand by the vehicle while the o goes around the other side and even goes into the trunk there are no attempts made up to the point of the altercation between the officer or my client where there is any attempt for him to le video and you're a client was trying to resist the officer and you're the officer told your client to sit and he's a pita they trying to walk away and the officer tries to pull him back and can't get him down and that's when he does that's not where he kicks the back of the leg so again because it is a ball fight in unity case you need to tell me what clearly established law when you have an arrestee who was resisting did the officer violate by doing that because we can't just consider whether it was excessive force and you've got to get past qualified immunity that this falls right down the fairway of the requirements of the th amendment that you and if you review the evidence in a light most favorable you know you're being asked about precedent the closest  immunity question is whether the law is clearly established what cases are you relying on to show that the law is clearly established the there is not a case in the th circuit that specifically deals with my back situation my position or honor is that it's intuitively obvious that it would have only obvious and clearly established are different polls when courts of appeal to look up when you repeat it so that it gets caught on the microphone yeah sure that he had an outstretched leg that the officer was angry and that the officer struck his leg with significant force fracturing both the tibia and the th below that the officer when he gave his deposition of a did my questioning about the very fact that he made contact with my client's leg and in fact evaded it he never conceded once and in fact the city and officer rogers in their briefing never conceded once that he struck my client's way i think this is significant because of the court's going to look at the case and i don't look talking about who said what in a deposition doesn't really deal with clearly established i wish you would deal with my colleagues question judge barrett is asking whether if kicking is permissible to get a non cooperative suspect to cooperate and where where is the clearly established line between kicking in an effort to take a suspect down and kicking too hard right that's that's the problem ok but my put my position or is that if you have a person in custody and the person has their leg struck by an officer the law in the circuit then i guess is that it's ok for an unarmed man who's handcuffed behind his back to strike him fracture his leg and that they officers and the law enforcement community need guidance in order to realize that that's inappropriate the whole point of what he was doing and i don't reflect back to the old days when i was a wrestler and coach what he's trying to do is shift the weight onto the right foot his right through it and get the other foot where he cannot recover balance and that's when he goes down it's called take down that's what he was attempting to do and i looked at whatever and and i would gauging in there is actually looking at the evidence and drawing inferences that the court believes if you go that way are favorable to the officer i think at this stage when you're looking at the record the underlying facts are agreed upon finally with regard to the hacky issue i believe that both the record is not sufficiently established plus there is no reason case on th amendment and hack is wallace i was struck by the fact that the district court didn't maybe struck is the wrong word in this case well i'm i was intrigued by the fact that the district court didn't discuss the controlling authority nor do you nor does the apple e it makes it hard on the court of appeals judges are with that i guess i reserve my remaining time unless there's a question that you would like me to answer right now not at the moment thank you thank you mr cook s or android or the other things that make up the fast majority of the world's computers you are absolutely correct your honor and let me please begin by apologizing to the court and will it minutes that  we believe we reasonably believes that the video that was tendered to the district court was equally accessible and i apologize for my lack of the microsoft windows x e file and again i do apologize for that your honor but promptly after  today's arguments we will get together and ensure that that is tendered to the court for everyone's review and now specifically as it pertains to this case and after considering all of the  in officer rogers favor because as previously addressed by judge barrett the video captures the entire incident and it reflects that mr johnson was forcibly resisting at the time that officer rogers engaged in physical contact and led to the use of force which grounded ultimately grounded mr johnson now for the st time on appeal mr johnson raises arguments is grounds for verse that he did not present to the district court and so consistent with precedent those are waived now instead of addressing those particular contentions we rely on our briefing unless the court has specific questions  would like to focus our limited time this morning on the merits of why mr johnson's cleans nonetheless fail specifically in addressing the merits mr johnson's arguments fail for three reasons st they hinge on an interpretation of events as proffered by mr johnson that he did not forcibly resist officer rogers attempts to restrain him and then return either wallace against cato or evidence against pasco wallace is the supreme court's dominant case and evans's this circuit's dominant case and neither side mentions either of them you are correct your honor those were not addressed in the briefing and and if the court would permit we would specifically offer a limited brief on the no it's too late you can but brief a case and then say well we didn't do a very good job let's try again is that if the factual assertions in the civil case would necessarily imply the invalidity then that's when the had the standard is not met here right to take take a much simpler case they suspect is refusing to sit down when ordered and resisting arrest in that sense the officer points a pistol at his head and blows his brains out right right is any hec problem in that case well of course he wouldn't have pleaded guilty after his death i suppose you might say so the officer points a pistol at is spy shoots and breaks a of gratuitous right there's no inconsistency of saying i was resisting arrest and the officer then gratuitously injured me right that's the holding of evidence and if you read the no need to write there's no inconsistency between the criminal conviction and that content that's what evidence focuses people and it's why it's so disappointing that neither side called this to the attention of the district court and neither side has discussed it here you're correct your honor and just the one thing that we would point out in that regard with regards to the factual claims here is that although the  johnson does acknowledge that he resisted law enforcement that under indiana laws specifically forcible resistance is an element of the crime and so by virtue exactly the suspect tundras the officer in the face ye forcible resistance he pleads guilty and he then says after i punched him in the face after i was in handcuffs after i was totally reduced the officer kicked me repeatedly we've actually seen those cases we've seen far too many but and we have held that there is no after problem in that category of that would be correct your honor and we and we share based on those facts in those particular cases but here are the incident occurred over a period of just to six seconds and during that time the forcible resistance was continued mr johnson did not surrender the incident of the use of force did not end until he was grounded so it wasn't the issue where he actually resisted and then after the resistance had terminated officer rogers then forcibly kicked his leg and that's not what the the court's attention to the alternative basis in which the district court found that summary judgment was appropriate namely the issue of qualified immunity and why qualified immunity would also entitle officer rogers summary judgment in this case specifically in order for qualified immunity to apply it need not hinge on whether the resistance was forcible or whether it was passive but whether or not his actions attempting to restrain and control mr johnson were reasonable under the totality of the circumstances so i'd like to specifically address one that that's the merits of an excessive force cl qualified immunity problem that that's why all three members of the panel are interested in where is the clearly established line where it's say taken as a given that you can that st and then turning back to and the prior question as to whether president from another circuit can establish clearly established law here that we would submit that i'm president from other circuits it does not clearly establish law in the th because it circuits and all twelve say it's perfectly clear that x and the th circuit is the last one to hear it it still hasn't been clearly established under that circumstance your honor no because again there are there's the majority of the cases excuse me of the circuits that have looked at it and in the th circuit could then look to those cases as having been the the answer by the way maybe it still hasn't been clearly a step and the supreme court has said it is an open question whether any law other than decisions of the supreme court itself can clearly establish that and our position is that with regards to the specific use of force that mr johnson alleges caused the injury it was that officer roger could not execute the particular discounting technique that he did in an attempt to restrain a resisting suspect and then ground him what's particularly important here is when you look at their reasonable calculus st you look at the the crime for which the individuals arrested and the crime in this case he had committed intimidation with threats so that the threats that were made specifically mr johnson and approximately two minutes prior to this alter cation with officer rogers stated he knew that his hands were cuffed behind his back and he stated to the officers that he was going to  kick another individuals but mainly the security officer and he was going to also fight officer rogers with his hands cuffed behind his back so he knew that he was somewhat restrained yet continued to insist that he was going to commit  an assault on these individuals now we also take a look and consider whether or not he was actively resisting at the time limit let me go back to this this clearly establish common with this kind of problem i hate to put the question this way but has any clearly established principle about what is clearly established been derived from these cases do we know how to draw the line i suppose in the th circuit it's now clearly established that if you use the taser four times you're on your own but if you use it once or twice you're ok i'm not sure that's clearly established but have have there been similar sequences about other ways of inducing cooperation we have not found any particular authority that identifies court in terms of identifying what clearly established is but what we do know is that there is no case directly on point and of the cases that have considered officers where excessive force claims  raised in part due to a leg strike that then resulted in injury those particular circuits have found that that like strike consistent with other actions by the officers were not excessive and specifically the thing for this court to consider is that even in executing that particular discounts in technique of officer rogers extending his leg and attempting to use that as a fall come for which to pull mr rogers to the ground even if he misjudged the amount of force needed to extend his leg made contact with mr johnson that brazelton injury qualified immunity protects the officer from liability provided that his decision to engage in that particular use of force was reasonable and at the time that officer rogers made that determination he was dealing with an individual who stated to the officers that he was going to stand up he was going to run and he was going to do that so that the officers would have to chase him and hurt him he was also dealing with an individual who made physical threats so the officers in that case instructed him st verbal e to remain seated for his own safety as well as to  ensure the or minimize excuse me the risk that he could pose a threat to anyone else and when he began to stand and then he began to physical resist now again in the six nd as officer rogers was just four steps away from m johnson before this particular alter casing took place and it only took place in six seconds so once he got to mr johnson mr johnson had made it to his knees at that point officer rogers did not make any physical contact once mr johnson then placed his foot up and began to stand that's when officer rogers places his hands on the back of his handcuffs to prevent him from moving at that point you will see in the video that mr johnson then begins taking steps forward and lunging forward to break away at which point officer rogers lunches back to try to pull him back or it's mr johnson again take steps forward and lunges forward at which point officer rogers then attempts to apply any to the back of his knee so that he could pull resisting person you want on the ground that's the way you're probably trained to do it and when you start describe we put one foot in bryan i said it where you put your feet i assume that something they practiced that is absolutely correct and that was in the evidence it was considered by the district court and tendered as exhibit eleven from defendants in an affidavit with regards to the training and so the question for the port is what an objective lee reasonable officer rely on the training that they received in cooke first of all with regard to the issue of six seconds i actually think the short period of time mitigates towards my side of the case because he had his partner just a few feet away there was no need to kick his outstretched leg and break it you talked him they talked about officers no we're back to the there was certainly no need to break his way there were other leaders striking like that trying to talk olds are judges not productive i apologize there was certainly a need to take him to the weirdest one where used clearly established a line between picking to take a suspect to the  ground that's the problem that this was this was not if you watch the videotape and i understand you haven't had a chance to see it but the videotape actually shows you minissha lee trying to trip and then the officer on cannot answer a question about what he's the clearly established law by pointing to the contents of depositions let me at let me state it this way sometimes the most difficult thing to find a case on is the thing that is most obvious to me it is obvious that this was who or who it is and as if that use the theory on which to pitch your case you have to understand that we do not set ourselves up for summary rivers that just doesn't happen