judges is that i'm very bothered by this case if you were to read all of these police records in you hear the statements about what happened to this this girlfriend this victim of mr  inskeep maybe deserved to die when i was reading the records i said maybe we should just kill people like this if they're assaulting someone however we have the law the police was no intent was there one knows a few you taste towards the heart that is a significant risk for causing death rate manual if you dig a little bit deeper in the story you'll find out that mr  sexually assaulted by a police officer when he was a child in fact the girlfriend states when they say women were the great point your honor they didn't know any of this when they came and that's got to get to the heart of the case  you say that your client is on the floor he's been violent he's been aggressive the officer said that he thought he said he was going to kill his girlfriend and that he was also going to kill the officers that  doesn't confirm it your client's on the ground after a violent attack and at least allegedly threatening the officers he's on his back he refuses to allow them to handcuff because he refuses to turn over on his stomach were he could be safely handcuffed by the officers and eventually they tasered i mean eventually just a few seconds because the whole thing happened so fast what would you have the officers do rather than taser when you're out of that's a great question but that's also the defendant's version of the facts if you look at the facts favorable to us that's not exactly what happened st of mitchell in his audiotape statement he said you know what when i walked in it looked like they were engaged in a sex act where i talked to the victim afterwards she said i was giving oral sex to the guy the victim was completely cal m throughout she never said oh my god he had his legs around me who is choking me that is a question of fact the degree and extent of what was going on is one thing the other all right were the kids screaming in the audio is that that the i mean i heard the audio officers version and you say well they're there oral statements somehow contradict their their sworn deposition statements yes so you say that by creating genuine issue material for yes by their own cut out i want to defendants don't have a sort of statement from her either in all of this all these allegations about what happened or it's all it's in the miscible hearsay anyways but i don't want to lose focus of the main point here this case involves two tases the st case let's say they really believed he had his legs around her and he was assaulting her if you listen to the audio they say stop get off her now they taze him the st time ok did everyone agrees or tell him to get off her before they the ground and do his will effective because if it were affected he would be totally incapacitated it if it was affected in fact that he got off or but the effect usually it's complete the guy goes limp that's the defendant's version of the facts our version is your honor and they admit in their depositions after the st case he falls off the bed he falls on the ground on his back it's undisputed at that point in time the girlfriend is out of she goes no no they tell her to get out of the room like i did i heard that on the audio get out of the room get out and you're going to get out of here i guess that's what they say that's later on that's in response to a child who was near in was turnover turnover turnover now turnover now they have a right to hand to get it rest him for assault battery do they not they have a right to arrest him they do not have a right to do another shot unnecessarily simply because he's now bluegrass to you the proper procedure to do that is to put him on a stomach so if his hands go behind his back isn't that the standard way to end up that maybe i'm not going to way to handcuff but he is sitting there motionless turn over turn over turnover they say is trying to get up they say that ok except and there's no there's no evidence to refute that there is there's the sworn testimony of officer thinking of these other cases there's another case where they said get out of the current person didn't get out of the car but there's no indication that in the car was more or less side up as you have other cases where where they say get down because they feel like i say roll over right now or i'm going to tase you again and the entire defense to this case is you know what we had to tase him the nd time because he started to get up to lunge after us we were just defending yourself i agree if he started  to them they may have an argument but i asked robinson when you said now after the nd piece you said roll over right now i'm going to taze you again when you said that did he already stand up to one jeff do you or previously violent aggressive person like your how would they do that the same way they cost them in this case they simply turn them over and cuff them ok well after he was tasered in the heart he that he was i mean he was totally he was totally passive you would have officers actually wrestle him physically wrestle him to turn him over to put the handcuffs on and you think that's that's the police practice that the constitution requires here is that it and if it's clear to every reasonable officer that if they did anything else it was if they tasered your position is it's clearly established if they tasered him in this situation that violated the constitution and all reasonable officers would know that and therefore could be sued and could have a judgment rendered against them if he's just laying there not doing anything else is unconstitutional what's your position on he should not have been tasered after the st time the st haze was effect if it separated the two he fell on the ground he landed on his back and he stayed on his back if you look at the audio but i i didn't pay too much attention to it because you didn't argue it you argued that the robinson shot and either did or did not connect him fired two or three more times which either did or did not have a shock go  the other evidence of tasing and he says that contributed to the death in addition to the kill shot to the her thank you thank you was constitutionally reasonable under the th amendment and the nd although there's just your court did not reach this issue if this court has any doubt about the constitutionality certainly qualified immunity would serve to shinseki argues there this wasn't as serious incidentally it wasn't necessary to use this for us and he looks to the michigan state police audio to argue that mitchell described it as a sect sex act and therefore it wasn't really a serious thing but mitchell in robinson both said the victim was gasping she appeared to have difficulty breathing she couldn't talk her neck was between thighs he was squeezing to strangle her and that's clear and even on the michigan state police audio interviewing mitchell right after he used the phrase weird least i don't recall the specifics but that there was violence going on and when the officers got there the son was outside very frightened he was too frightened even to go back and the  daughter was in the apartment left the officers in she was crying very frightened it was clear i understand that argument i understand the force of i'm more concerned about what happens afterwards right right right so let's assume for argument's sake that all you say is right this is a gruesome awful thing that was being done to the victim but isn't there some evidence that at the time he was stunned she was out of the room she was at the  time is there some evidence that a jury could believe that she was out of the room when he was done by mitchell that's correct ok so let's assume then that she was out of the room just because there's some evidence to the them ho permissible for him to tase what's the what's the rationale it can't be the harm that was done to christina because she's out of the room right now it but if that point the officers have a right to use force intermediate force of a tas threat or if one position was more dangerous than the other and they want to preserve their own safety but all of those don't relate to how serious the crime was except maybe indirectly that there was more at stake people trying to run away but when trying to run away what if what i think the officers consistently testified was that he was flailing around thrashing around he had a crazed look both officers said he was getting up to come and that enough you have a you have a person you're trying to arrest and they have a crazed look but you can taste i think in the context of this case absolutely context the kind text is this is someone who is other than the threat to the victim was no longer there this is well let me let me back up when i'm trying to answer your question question the officers are entitled to use reasonable force so then the question is could it jury reasonably believe using a taser as opposed to engaging in entered hand combat was reasonable in these circumstances the officers officer mitchell testified that capital was very muscular he looked crazed he was flailing around he was coming at them the officers in this case as in every case always worry that if they do in a gauge and hand combat particularly with someone who has shown himself to be capable of such  violent physically violent conduct that their own guy is at risk and that all sorts of unsafe things are what happened with me coming from whe there in and i don't recall the exact dimensions of the room but they're in a room and there's some of the feet between them but not very many it's a small room as i understand it so i'm what time to what the greatest amount of distance that wintery could believe was between mitchell and captions a couple of feet but that's what a couple means to me you're saying he was this far away more than two feet but i i don't i'm sorry apologize i don't have a specific amount of feet but i would say they're in close proximity and under plaintiff's theory they should naked in someone who was on the ground in some ways i think the fact that he was naked yes it shows he doesn't have a gun but it doesn't make a fight somehow easier to get here and can come sun him i don't be on whether the suspect is actively resisting that's where the court has drawn the line and that's how the district court drew the lesson he actively resisting by he's not following the commands obviously but they say he's just being passive down there he's the they repeatedly give him commands and i guess he doesn't really he doesn't respond one with the other he's just doesn't say anything at all so he's not following them but is that active resistance or passive re think it absolutely is in the district court said the capstone of active resistance was when he was getting up to come at that and both officers consistently testified that they observed that so at that point and keep in mind we're talking about a period of less than thirty seconds between the st phase and the nd phase officer mitchell turns his taser eye and when really did much to complain or i don't think it's fair to say nobody did much to obtain her presence i think it is fair to say that nobody could locate her however in the immediate aftermath she let's set that to the side i'm not sure that it's excludable but let's even if it is what we have is physical evidence that the taser my client's taser was time for five seconds that it was used when both officers said this muscular man with a very creased expression in his face was getting up coming at them after he had been given and i think the district court said eleven verbal commands to turn over into what would have been a safer position so he could be handcuffed and in that circumstance the authority from this court i think makes clear that amounts to active resistance and what the officers did was appropriate this court said dickerson you're not obligated to turn to a different math that when you're trying to bring somebody under control and i think that's absolutely true i'm sorry i'm taking my colleagues time thank you morning may please the court just garish on behalf of officer robinson who's from the city of gibraltar all the arguments in this mess around is asserted apply with equal if not greater force to officer robinson and there are two theories as against him the main theory is that he didn't intervene to stop officer mitchell the problem with that is twofold number one he shouldn't have stopped officer mitchell officer mitchell did not use excessive force because both robinson and mitchell testified repeatedly and consistently that mr kaplan shinseki was trying to stand up they were trying to get him to turn over he was trying to stand up officer mitchell testified to that at least seven or eight times in his deposition starting at page ninety nine was it contradicted at all by as oral statement i have not listened those are all states i've got the depositions but i saw the oral statements were submitted but is there or is it contradicted b oral statement i don't i don't know i don't i don't think so i know it's does that's all that's always of are you somehow they contradict themselves right in this deposition testimony was very consistent ok that's what i'm asking you does are there contradictions between the oral statements of the officers and their deposition testimony i don't know you don't know well i don't think so i don't it depends on how you count i mean did he say the did he use the exact same words probably not but he testified consistent he was trying to stand up and he went round and round and round what do you mean he was trying to stand up and officer mitchell because he couldn't remember exactly his position but he's he was he was on his he was face down trying to get up he was either he  either had one foot up he said he wasn't he didn't think he had completely stood up but he was trying he's in the process of getting up while he's being told to turn over so then the question is is it reasonable or is it excessive force to  the circumstance it says we submitted it was not which is why in this mass arounds client shouldn't be held liable and with regard to mr officer robinson not only did officer mitchell act reasonably but there was no opportunity for officer robinson to have stopped him according to plaintiff himself officer mitchell deployed his taser without warning he just did it and so the notion that officer robinson could have stopped it had the opportunity is not not so it's contrary to the other that's robinson was i mean the two officers are from different police part yes they're just really working together because one of them only had one officer on duty or something like that i think they both just had one o but that's why i focus on the fact that he didn't have the opportunity even if you were deemed to be the superior officer on the scene that you just have a little time i'd like to ask about the other part of the argument against you because of all of it's been spent on what mitchell d but there's also an argument as i understand it that maybe there isn't that robinson's continuing to charge the taser whatever or having fired later on the stone mode what's your reaction to those sure that even are you it's not certainly not develop he i think he does mention in passing that in addition to not stopping mitchell he continued to pull the trigger the problem with the argument is it wasn't working the evidence is undisputed that it wasn't working and go through the same probes and create a nd shock record shock right worth a shot and he continued to fire those just on the off chance that maybe they did connect yes right what happened ok but they were they weren't working and so the they don't know what happened to the nd probe there was some suggestion that it went on the girlfriend and then there was some suggestion that it prob know who the nd of the two pro circuit yeah there was no there's no either this circuit was completed because one was on her and one was on him and they were touching each other and that caused them to come apart or he was startled by it and so he let her go and then she left the room but it's under some sort of effect of miss from this yes either if there was some evidence that there was some from the initial and maybe even subsequent st charge st i think that's fair yeah there's some there's some evidence not trying to say that's true i'm trying to say a jury could possibly find the jury could find that the the initial  deployment of the taser by robinson was effective there's evidence of that but after they said no subsequent firings would also have had some of no that's the point after they separated he tried two more times and they had no effect the evidence is on both robinson and mitchell testified they weren't working because they said if it was working he wouldn't have been able to get up and yet that's exactly what he was doing and so mr wegg lawyers asked him why argument is it might have worked evidence of any deployment other than the initial deployment by robinson and the two subsequent trigger pulls that were having no effect of mourning those others talk about the owner of the ops a report something that says there's evidence of what might have been a stunt but but don't even know what i'm talking about i do you know i know i know what you're talking only about it because there's not because robinson and mitchell both testified they didn't do that they did not administer a stun gun they never shot there is some evidence that based on the evidence that there was some there was some way there was some wounds here and there and so there was it was thought in the evidence you're talking about that it was possible that there was there was a touching of the stun gun to the body but they both testified they never did that there's a conflict in the evidence but there's no admissible evidence that it happened other than the evidence of various marks on his body  they're not saying it's right i'm just trying to understand whether that's something a jury could believe you say no but why no there's two it's evident you say there's no evidence except this evidence doesn't compute where there's the wounds don't refute the testimony of both officers that they didn't do that we know moons are not because they don't they're not indicative necessarily of a stun gun there's just speculation in that report that's all it is but i think if i can just i know in my time is up the other thing that's important to keep in mind is the last trigger pull by robinson was one second after mitchell's taste of the heart so there was there would have had no impact anyway and there was no way that he knew that it happened they were essentially simultaneously all this happened very very quickly which i violation here you're the arguments often whether it's excessive force under the th amendment the nd step over that you also have the burden is that it's clearly established law that what they did violated the constitution and that a reasonable officer would know what they did clearly violated the constitution what's the best authority you have to to to sustain your burden of proving that what they did was clearly established so that all competent officers all but the incompetent would know what they did violate the constitution sure we put several cases in a brief st of  i mean i mean we could remanded for judge turn out to make a ruling on a but it's strictly an issue of law and i don't really see what benefit we would we would receive by having judge tardo make a  legal ruling understand when you go to the cases of yeah ok you look at brown brown as a traffic stop case and it was a very minor non serious situation i mean our  id and and i think the the the the plaintiff there became aggressive and belligerent but here we have a serious crime of assault and battery which distinguishes of brown does it not and also here they can arrest him for salt battery they're going to put him in handcuffs i'm not sure they were going to handcuff him for the traffic violation and brown and brown we have a traffic stop that was preceded by the plaintiff driving on a highway with no lights on he then physically fought with the officers pushed him a couple of times there's an assault right there and then he started to run away he was fleet so i don't necessarily agree that that is so know if if the plaintiff in brown only stood up and resisted physically and pushed them away a couple of times it doesn't matter at the time they taze them he stopped we there was totally passive he was on his knees he was not doing anything basically they refuse commands of the officers and they tasered him anyway and that and that's argument that they were placed on notice look at submitted a courtman called the next case