your honors i may please a court robert jones on behalf of the appellant's this case is about a juvenile united states citizen who was deprived of her constitutional rights and then denied her day in court this co should reverse and remand this case to the district court for two main reasons first mr pena is second amended petition which was filed in state court and later moved to federal court stated claims for excessive force against the individual officers and second justice requires that either mr pena be given leave to amend her complaint or the texas notice pleading standard which is what her complaint was directed to comply with be used to judge the sufficiency of that complaint to my first point miss pena's second amended petition stated claims for excessive force against the two officers for an excessive force complaint mr pena needed to plead back showing an injury which resulted from a use of force which was clearly excessive and the excessiveness of which was clearly unreasonable in this case the injury is clear the record record is rife with references in the complaint pled in this pain yet had teeth injuries her face was blood and cut as a result of falling face first into the ground after being taste in the back of the head and on the pages to a seventy two zero nine of the record are the photographs of that as far as the excessiveness and the unreasonableness of the force this court has said that we look to the gram factors those factors are the severity of the crime it is issue whether mr pena posed a threat to the officers or others and whether she was resisting arrest or attempting to evade arrest by flight in this case so if if the police officer comes to a domestic disturbance and they want to control the situation and then there is headlong flight from that arguably putting the child in danger when we have multiple gram factors or and this is a compound question but so so answer as you think is best or at least no clearly established law that we tell a police officer when they just stepping in to help get runs towards a street they can't see s as in tackled a kid honor two points to that first of all at the stage where we have to take mrs pena secluded out asians is true and her complaint she doesn't say and there's no evidence that she was going to run into the street or that she posed a danger to herself to your hypothetical that would be a closer case your honor but on the facts of this case miss pena was running toward a back alley and we don't know whether she was going to turn left or right there were four police officers on the scene what they did by tasing or in the head is ensure that the thing which they say they most feared which was her going to the street could have happened she fell face first and ended up just feet from the street which is far more being tasered into the street is far more dangerous and on the clearly established piece your honor this court said in newman vs gregory as well as out in vs city of baytown is given when no other use of force is tried when when those things are present it can be a clearly excessive use of force to tase someone in fact when tasing someone is the first indication that they've done something wrong this court has said that that could be an excessive use of force in this case mr pena had committed no crime she was simply running away from her car and that's something she had the legal right to do she had not been detained she was not under arrest and she was not the suspect of a crime there was no headlong flight in a high crime area they were in the parking lot of the police station so the severity of the crime in this pena's view weighs in her favor now whether she posed an immediate threat to the officers again in looking at the complaint there's no evidence that she had any weapons and as far as posing a threat to herself again there's no evidence that she was going to run into the street and in looking at just her complain she doesn't even mention this and there's there's nothing that she was suicidal or anything like her complaint denies any physical resistance the second amended petition doesn't even mention it her proposed federal complaint denies any physical resistance or contact with anyone all it says is that she ran away got out of the car and ran away but what use do we give if any to the police  report first first tell us what the police report said that is significant here to our issues what what what you should we make of it certainly your honor of surveillance police report said that she was resisting him and that she i believe has been punched him in the chest as she was trying to get out of the vehicle in this case i would argue citing wilson versus burn bar which that every inference has to be in every doubt resolved in favor of the plaintiff would argue that to the extent the police reports conflict at the complaint they should be disregarded and the complaint  procedurally how did the police report come to the to the court's attention they were attached in error by the trial counsel to the complaint they were not specifically incorporated in the second image petition they're not mentioned they were just attached to it  here you can't complain that we don't consider it because it was attached in our general rule is things attached to the complaint or are to be considered part of the complaint certainly the proper attachments your honor but to the extent they conflict with her and the police reports themselves or conflicting off surveillance report says at one point that she was running near traffic at another point it says she ran into traffic and it's all the same there's no indication in myspace complaint she says she never got out of the vehicle or of contradiction on portland a material fact issue in oh how do we handle it your honor i would argue that because all the inference have to be made in her favor at this stage at the motion to dismiss way to the complaint or included in the complaint or was it something that was produced maybe a summary judgment i believe that was at the summary judgment standard your honor or at the summit at that stage excuse me well so i guess what i'm saying is if it's attached maybe it was a mistake to attach complaint that was done and you had nothing to do with it but if if we consider everything in the complaint and in favor of what is pled you know part of what's where it is is is that the police reporting the facts there so it seems to me maybe that that undermines our reading of the complaint your honor again to the extent that they're conflicting i think we have to look at the complaint otherwise i think we're into the territory of weighing facts which is something better done not at this motion to dismiss stage but at the summary judgment stage and again of surveillance says that she was running in or near traffic officer salinas doesn't even mention that officer salinas lieutenant solis this complaint says that she was running one says she's running towards main a busy main street another says she's running towards mayor solis street which is a back alley these are all things that are better decided at a later stage of this case where there's differences in fact this is a question for a fact finder to discover or at least to flush out during discovery at the summary judgment stage your honor on the excessive force for the to overcome qualified immunity on a plea of excessive force and again we contend all the grand factors way in miss pena's favor on the third excuse me because i didn't finish that resisting arrest or attempting to evade arrest by flightless pena was not under arrest she was never in fact charged with any crime she was not told she was under arrest the only thing she was ever told was get out of the vehicle or i'm going to tase you which she did get out of the vehicle so in that case she can't be resisting arrest or attempting to evade arrest by flight if she's not under arrest on the qualified immunity piece that clearly established peace this court said and darted versus versus city of fort worth just this last august that it has been settled law since two thousand and five in this jurisdiction that you cannot tase a non resisting arrest d without any of these things i've been talking about a warning trying some use of other force even a command there's no evidence that she would have disobeyed a command and if you can't taser a non resisting arrest the without these things then it's certainly clearly established that you can't is a non resisting non arrestee in the back of the head washes running away without so much as telling her to stop stop or i'm going to t you your honour's miss pena played all this in her second amended petition which was enough to make it past the motion to dismiss stage now in her proposed federal complaint which was attached to her motion for leave to amend which was denied in this case she pl that there are city had a failure to train and the inadequate policy training policy that she points to is it's twofold that there are city employed uncertified taser trainers and that a number of officers were not trained in the taser at all the causation is clear in that case mr pena's injuries were caused by the negligent use of a taser and the officer silliness did not stop running for she aims she taser in the back of the head without warning all things which by the way are not suggested by tasers policy so the city doesn't have has policies that are at odds with the taser manufacturers guidelines which says tasing someone without considering secondary injuries in the back without giving them some sort of warning are all things that should be avoided in every case possible here it was possible to avoid it there were four officers on the scene outside the police department and they didn't so much as give her a command to see if that would work first when she was not running towards the main street but in fact she was running towards a back  alley and your honor on the point about the police report that a car might have been coming again we're looking outside the complaint here and i know is that before i say this but a quick even simple aerial google search shows that you can even see them on the street she was running toward from where the officer was and that's just another piece of evidence as to why we have to look only at the complaint at this stage these are all things that need to be determined at a later phase of the case on the texas tort claims act piece city of latakia would seem to govern this case because it says an that in claim for excessive force is an intentional tort where sovereign immunity is not waived and the court said or an arrest a lawful at its inception escalates into an excessive force situation the that is an intentional tort there are two issues to point with that first of all this was not a lawful arrest that's one distinguishing factor second in district of columbia versus chand which was the d c court of appeals case which the texas supreme court relied heavily on in their latakia analysis that case said that negligence action can be maintained the situation in this situation it just has to be pleaded separately from the intentional torte and some of the things the d c court cited which may g rise to a negligence in action in this type of scenario is a misperception of a negligent misperception of a threat which leads to the use of force negligent for example aiming of the taser device things that happened before the initial force is applied which is when she pulled the trigger on the taser and miss pena's proposed federal complaint attached to the motion for leave to have men she believes that officer salinas misperceive the threat that she was going to run into the road which led to her tasing that the aim was negligent that officer salinas failed rule fifteen as well known events as a bias in favor of leave to a man this court said in smith versus e m c that you need a quote substantial reason a district judge does to deny a motion for leave to a man in this case the district judge  even consider ms pena's proposed federal complaint which was attached to her motion for leave to amend the district judge only consider changing the style of the case adding a party and rejecting confidential information from the police reports and that is what her ruling was based on the leave to amenities this court said in thomas versus chevron and there's a quote that the precise content content of thomas request for leave to amend was not immediately apparent but nonetheless this court looked past that and looked through the pleadings because of that bias in favor of granting leave to see that mr thomas sort of made out that he should be given motion given leave to amend his complaint in this situation mr pena attached a completely new proposed federal complain and in that complaint she pleaded an additional facts on each and every cause of action in her attempt to comply with the plausibility standard on the excessive force against the individual officers she played additionally that she was continued to be taste washee was on the ground in an andersen versus she pleaded that off surveillance fabricated things in his police report on the admin claims against the city she pleaded that the city additionally to the city maintain policies at odds with tasers manufacture guidelines and that there was the failure to train that i mentioned earlier in the texas tor claim to actually additionally played those misperception of facts things that i already went through she said enough in her proposed federal complaint it was an entire complete complaint and where the district judge did not even address that or even look at a ruling denying that scuse me versus bailey tool manufacturing in that state procedural rules govern portions of a case that happened before the case is removed even if the case is later removed and it cited specifically that sufficiency is one of the things that state procedural rules will govern things for us number one under the case law does it matter that she was a juvenile that's number one and number two does it matter if she was suspected of a crime that would have been a misdemeanor them t she was a slight built woman who was teased in the back and a very similar situation to this this pain it was this was a juvenile was small and i think since it's a totality of the circumstances analysis under the fourth amendment it of course matters when it comes to her ability to understand commands by the police the police need to be very explicit with what they say to her so absolutely i think the juvenile piece matters on the crime even if it was a misdemeanor a pelleas brief suggests that she was guilty of disorderly conduct which she was not charged with that would be a closer case but it still does not allow tasing someone without a warning and in fact in newman and darden of city of fort worth all of those cases there was more justification for the for the interaction so a newman versus wade jury a traffic stop that they had problems no case thought this is teasing can be used for investigative detention a terry type reasonable suspicion no your honor i'm not aware of that case and in this situation the officers didn't even have enough for a terry stop and if we do overcome qualified immunity by points of the fact that no reason officer would have done this and by citing that but if this court were to find a constitutional violation it would certainly be appropriate to ask her to repleat on the qualified immunity issue that we would know for sure that the possibility standard applied in govern this case they show what is the specific relief that you're asking for if we were to write an opinion and decide the case in your favor what with the final sentence or two of the opinion say in terms of the  result two pieces so two sentences your honor that mr pena stated a claim for excessive force against the individual officers in her second amended petition first of all and that this court remained the case to give her a chance of give her leave to amend her complaint so that she can attempt to comply with the federal plausibility standard specific actually since the district judge didn't even consider all of these allegations in her attached proposed federal complaint or so we would we would under the under that if you've answered my question directly and i appreciate that under that formulation then this panel would not be addressing specifically the qualified immunity issue is that right unless you have it that her second amended petition stated a claim then that would in hear inherent in that would be that she to give a little bit discuss the facts a little bit because i think the facts do matter in this case what happened was a seventeen year old girl you asked about a juvenile the seventeen year old girl had been reported as a runaway before and was brought to the police station by her father there was a disagreement a struggle at the very least between the girl and her father officer velez shows up tries to secure the scene there's a disagreement as to whether she struggled with officer bell or not in the backseat of her vehicle before she ran out the other door down the street and as officer between an alley and the street it is frequently used as a street washington is blocked by buildings on both sides let me ask you this let's suppose a father and a child the five year old are standing on the street corner and they're arguing circumstances specifically in that general circumstance and the way the questions worded obviously nobody wants to tase a five year old with a would be a serious way to be authorized to take to tell your five year old when they saw that they were their life was in danger gave the exhaust their life is in danger believe they would because think of it and instead in terms of let's say the officer was standing next to her or just talking to somebody and at that point the officer noticed she's getting ready to run into traffic her is to traffic she doesn't see traffic he just pushes her out of the way instead of just pacing her let's say you just push her out of the way this is not a under arrest circumstances just for her safety the officers entitled to use some degree of force in sort of beg to get past the dismissal stage i mean this is a very rich and complex sort of narrative police may have been trying to help could have been reasonable or unreasonable but it doesn't really address their frontal point that the district judge dismissed this and we're talking about two different things one has to do with whether that particular circumstance would justify an offer to actually i was going to refer to as a saucy case a mistaken but reasonable belief of a potential danger justifies using more force and may have been needed in this particular show i mean how do you have a case where that they were the police used excessive force it was ok on a citizen when they were not suspect of any crime they were not under arrest that officers can use force on a person under those circumstances not not one where he was not suspected of any crime the one i would refer the court to is one that came out last september out of this court the zimmerman because her case september of last year just a month before the court's opinion involving an officer shows up to the scene there are there's a discussion not really a fight one of guys runs the officer pursues him tase him he falls down and hurt himself shatter brakes on that was one circumstance one case which this court concluded that even though they didn't he suspected there was disorderly conduct just like in this case but in that case the court said the fact they suspected that there might be something was enough to justify using the taser in that circumstance what i was going to get at in this particular case your honor had to do with the analysis we're playing at this stage of the qualified immunity for the officer by levy clearly established constitutional rights and the question is whether at the time of his actions and getting back to the question judge joan had at the time of his action was his action clearly in violation of constitutional standards was it clearly established that doing that was in violation of standards or me in particular where there was no prior ruling as from my understanding no prior example of pushing the suspect or pushing the person out of harm's way to protect him from some higher danger there's no prior case law saying that that would be a violation i think when you're looking at whether he violated clearly established constitutional rights it would be hard pressed to argue that he was he was clearly in violation it's an objective objective standard objective  reasonable and again for qualified immunity requires heightened pleading now but here too we're in a world where the just a court never got to any of that i'm sorry with the discord never did any qualified immunity analysis and so it's difficult for me to follow the argument because it seems like you have very different arguments here one is that there was some level of suspicion she had committed some to some level of convincing for some misdemeanor disorderly the other version that's being said  no not at all we were trying to protect her from herself well actually i realize or is which i when i got it i recognize that difficulty right off the bat and that's what i was going to point out to you is that that's the difficulty we have here is how you choose to analyze it are you choosing to analyze this case as an officer who did not have somebody under suspicion and who was trying to take action for their benefit mistaken but reasonable believe what we work we're limited to the complaint i'm sorry we are limited to the complaint weiner stand and that's what i'm saying is when you're looking at the complaint and you're looking at what the officers did and you're looking at what the facts are officers reports and you look into her allegations what you have to deal with all of them together and when you're looking at all of them together you do have these well acts that what's your best case for that it was an unusual set of circumstances that got the police reports but you heard questions two opposing counsel why would we deal with all of them together even if she mistakenly attached them well in other words if we're going  say you didn't even plead an excessive force case wouldn't we just look at whether whether and what she pled and she didn't there's no suggestion there she was violating a law what more is there even a suggestion that she was running into an s allegations anymore so now i don't think there's any case that authorizes you to completely disregard the prior documents letting instead she had a there was a protective order and the plaintiff wanted to complain that  everything they did was hunky dory except the protect and they attach a copy of the protective order saying he was not allowed to be near the house well now he wants to take it away are you going to not consider that protective order will even if even if you're right and i'm not at all sure you are about the police reports then what is the narrative is it that they had they were responding to a level of suspicion or do the police report say we shot or to keep her from getting run over and what i'm trying to say i'm asking you the question which is the narrative if we accept the police reports what i'm saying graham factor narrative what i'm trying to say is under either scenario i know but i'm asking you which do the police reports support the police said that the police reports if my interpretation the police reports is that they were not trying to tase her as part of an arrest ok my understanding was it happened in a very short amount of time you know the as she ran down the tennis really saw the vehicles approaching crossing in there wasn't a lot of room for there was a safety table the space station ok yes my understanding is what the officers were doing was strictly for safety i have to also respond for purposes of qualified immunity that even if it was for purposes of her arrest they had a basis for her arrest as it was a disorderly conduct and they could have taster and they would've been justified especially based on the zimmerman case which says that when i it's always difficult for me when a coun says based on a case that existed before you file the brief that we haven't heard they haven't heard so what about based would finish that sentence with a case you cited to us and i don't have anything specifically that this it that i cited you there's a number of case that just basically say the  under reasonable suspicion if he has a remote suspicion that the person is violating the law to stop them now i would agree that it is not good practice to pay somebody while they're running and i agree that that their allegations  what happened was they wanted to make the imposition the assumption what the police report said as they did as to tinsley's pulled up he said is that thing off or turn that off or something like  that as the evidence did end up showing it was only one cycle it's a five second cycle and it wasn't it all happened pretty quickly and by the time it was done she was on the ground and the taser might have still been  charging for a total of five seconds but there was no more than one cycle there was that allegation in a sense but it was based on the officer's report which didn't say that there was more than one  my point getting back to the fourth amendment the claims against someone else are the ones where you have to decide whether or not it's whether it was a pursuit issue or whether it was a for her safety issue as tenants least on the other hand they try to argue that because he caused her to be taste that he is liable they try to make it as a direct liability but it's not because he did not actively participate in the tasing what he did was he gave the order and that's the extent of their their allegation that is really a supervisory allegation and navigation of supervisory liability not individual liability and for that you have to show that he was deliberately indifferent and  than give the order to taze and as a supervisor you have to show under evidence and you see every case it says that you have to have something more deliberate indifference to be able to show he should be liable for them or geisha the claims against the city on the other hand you've got either the customer policy showing that they had to have some evidence of customer policy showing that this was going to happen and they identified they they made some allegations but they  no basis to establish that the city actually passed that or adopted such a policy and the second one mainly had to do which seemed like their main argument had to do with insufficient training or deliberate in difference in their training but they identified no other training first they didn't identify any of the training that these officers did get really make reference to it they just said they should have had more the zimmerman case also discusses that which basically comes down to you didn't even identify you didn't identify the specific training you can identify any training much less any specific training that should have been used or that should have been applied and without that you can id you can't get to the deliberate indifference for not having the training the whole purpose of that is that they knew this would have happened and because this was the only tasing incident that's ever been referenced or that i'm aware of they can't you can't get to that they should have known this was something that would have happened i'm going to jump over to the tort claims that unless you have some thing else on this on the well the short or the on the tort claims act claim the gordon case is the one that tex pre board specifically said look if you did it deliberately intentionally then it is not a negligence claim they want to try to argue that negligence includes being a bad shot but it's not the fact that one prong struck the back of her head it is not evidence of you aimed it badly taser prongs aren't designed to be to have been point accuracy the fact that you shot it and you intended to shoot it is what the supreme court has said makes the difference in terms of deliberate distinguishing between negligence and intentional act i think judge owens opinion in boost will be more teeny club discussed some of that where you said the fourth amendment claims require elements of intentionality as opposed to just negligence and here where they're claiming that the liability the whole basis for the damages came up because we tas officer salinas taster for the fourth amendment you have to show it's intentional which means you can't say it was negligent under the top claims act it's one or the other because they're making a fourth amendment claim i think there will have difficulty establishing that now jumping over to the leave to a mentor complain complaint to see whether in fact it it is sufficient i agree this isn't a noble review and what i'm saying is in looking at those to make just general allegations and by doing that it's a conclusion rather than i'm going to call it evidence but it's not evidence that's the facts the facts that would establish the basis to say here's how the city had a customer policy not just they had a customer policy of doing custom and policy of doing this  and the same thing for the police reports as we discussed or you can just ignore those the fact that she wanted to add officer bella is kind of irrelevant it's just another person who would have been liable now those are the judge found those are the things that she claimed were changed in the proposed amended complaint whether they make a couple of arguments one is that the motion for leave should always be granted i would suggest no it should be granted if it would make a difference it does not necessarily get granted if it doesn't add anything new and with the court found is it wouldn't grant anything new specifically under the if if it could be granted for everybody regardless all the time then the futility doctrine is pointless the whole purpose of the futility doctrine is to avoid or prevent the filing of documents or additional amendments which wouldn't change anything clearly if a complaint is amended is subject to federal states and it's not that different the there was a in doing my research and getting ready for this hearing i did want to cross an argument additional argument relating to texas rule civil procedure ninety the reason i mention that is because at least one of the cases has identified her as his argued that because it's the same the standard that you apply in reviewing the ninety one a is the same standard you apply in reviewing the tw of the six originally it was a go daddy case and i apologize these were not previously provided to opposing counsel but i just came across them recently the go daddy case talked about the plausibility standard that was out of the boma court of appeals after that the the fair notice standard the reason i mention that is because it is just to say that there the standards are actually not that different after you know the case will be started referring to it as a sui generous meaning you have to consider it in a number itself which separates it from possibility or fair notice standards because now you're just looking at you know it's an animal unto itself when you're looking at t it is something that has to be looked at independently and because of that i think the judge was correct in finding that there there was no need or reason or basis to authorize an admission of this additional doctrine i would ask the your honors very briefly want to clarify my last point that i was speaking of when i was up here about what the last two sentences would be of the opinion arguments or in the alternative so if this court were to find that the second amended petition stated a claim this court remained the case for discovery to be again if the court were not inclined to find that they were inclined to give mr pena leave to amend her complaint that would be an alternative and they would give her this court give her leave to amend on remand those were two arguments they all turn to clarify that these new argument and i apologize i cannot cite you a specific case for this because this was not mentioned in either of the braves texas is still a notice pleading state and as a poly acknowledge there are cases on either side of this issue with t courts of appeal saying no we apply a fair notice standard and others saying it is akin akin to a possibility standard not that it is a possibility standard either way the the texas supreme court has not said neither has the legislature or anyone said the texas is not a fair notice pleading state it certainly is on the heightened pleading issue that he mentioned a qualified immunity the district judge cited an unpublished ball case for the proposition that qualified immunity claims must be pleaded to a higher standard and even under that standard all that was required is an identification of individuals involved officer silliness and the tennis solace and acts which give rise to a constitutional violation the tasing in the back of the head moreover on the argument on leave to amend the district judge never considered the proposed federal complaint there's no way whether she knew it was futaba not because she didn't consider it and finally your honour's opposing counsel stood here and described the streets and described all sorts of facts to you all facts that are not in the record as why they were at the police station what the streets look like that is the perfect example of why this case was premature or the traffic conditions or the traffic conditions or any number of other facts it's a perfect example i think you're on to read my mind of why this case was prematurely dismissed there are a lot of your continued good supervision