city of shreveport in midst signorino you are representing appellee in this buckle you are representing appellant so welcome and we know there will be a little bit of choreography on the on the student clinic side significance of the facts that were determined by the trial court to address whether the officers are entitled to all that and unity but i do believe this specific case is exactly that is you and that is a think that issue for the sport to recognize is that the district court erred in its analysis of based on the underlying facts the district court did it review the facts in the favor in the light most favorable to the plaintiff however the court failed to complete its analysis and failed to review the facts from the perception of a reasonable officer in determining whether those officers are entitled to qualified immunity in fact if you review the district court ruling you'll see that nowhere in that opinion did the district court in a wise the perception of the officers and that is exactly what's required this court has said repeatedly that in determining whether an officer is entitled to qualified immunity the the the court must look at the facts not as they actually occurred but as the reasonable officer would perceive this facts and so i do believe there is a legal issue for to be reviewed by this court and that the district court erred in its legal analysis specifically i believe the district court looked at the merits of the underlying issues and prior to the takedown the district court essentially determined that the use of force was unreasonable and excessive but again nowhere did the court perceive the actions of officer sisko no where did the court perceive the accident officer mcintyre or  yeah because you didn't file a reply brief it's our it always helps me to hear how you would address cases that your opposing counsel identified and relied on strongly and the case that concerns me most well there are twenty one is our trammell decision and the other one is brown versus lynch brown is an unpublished opinion but it states very clearly with a footnote in extensive support that the law is clearly established that striking a non resisting suspect is excessive and unreasonable and therefore i guess my question to you is do you accept that is clearly established law and do you therefore rely on the video as conclusive proof that he was resisting throughout it believe that it is clearly established that force against a non resisting person is excessive but again you have to look at whether the officers reasonably perceived as actions as resistance oh and what about what about the tr because there it was even more clear from the video that the person did tencent pull away they are and yet our court said that that had to publish decision our court said that that still goes to the jury as to whether  justified it take down an immediate takedown plus direct strikes to the spot it i would you distinguish trammell because you don't cite it in your brief and i did not your honor and i apologize for not brown are distinguishable and i would particularly point to brown and that that case the court determined there were fact this step prevented the court from being able to determine the conclusive that is to say it belatedly contradicts his claim that he wasn't resisting when you look at that video do's i mean he's not trying to flee he doesn't try to hit them is it really that he  to be resisting and i think that the plaintiff mister tucker bears the burden in defeating qualified immunity but maybe be as specific as you can what was the resistance when he's got his hands when he's up against the the video there are several seconds where officer mcintyre simply tries to grab his arm and both officers are attempting to pull mister tucker's arms behind his back and mister tucker is jerking this head back and forth looking sergeant well so that's what i was wanting you to describe it the head jerking and then he lurches i mean i look at it by freeze frame and i would have think the lurch really could have been mcintyre grabbing him because he doesn't know mcintyre is coming up might have been hit but mister tucker acknowledges that he had been told to places and clearly that was not happening the officers were having to struggle to places and behind his back so at that point mister tucker has not complied with verbal commands and the officers are allowed to use measured in ascending responses it already provided verbal commands at that time a takedown is measured  and so i do believe based on what how they perceive it is what's different in this case for trammell than where we let it go to the jury to decide exactly that was the immediate takedown and then direct strikes was that excessive or was that reasonable for someone who isn't trying to flee doesn't have a weapon multiple officers around them how do you distinguish this case from dram and your honor forgive me if i'm incorrect but i believe there were additional factual disputes in trammel that needed to be decided by the jury it was not a strictly legal question which i believe is proper in this case because that the facts  disputed there are different spins on the facts and how they are perceived but as far as the actual events that occurred this truly are not in dispute it's just whether those actions were reasonable and held and if they were perceived in the same manner those are different spins which is the same is that what occurred in grants versus brewer and that's when this court said you have to look at it from the reasonable perception or from the perception of a reasonable officer tucker was attempting to pull away mister tucker was larger than both officer sisko and officer mcintyre and you have to look at the to tally of the circumstances mister tucker had just led officer of cisco on a two minute chase while it wasn't a high speed chase certainly alarms are raised in their minds when he failed to stop the slide you know multiple lighted empty parking lots and he drives through a residential neighborhood which the officers in their experience believe to be a high crime drug area ulcer cisco reaches the door smells marijuana again consistent with the area that th facts i have a new record and i agree they're all pertinent to the taliban what's your best case that it isn't excessive force to stand in kick in an arm stop suspect on the ground already surrounded by officers i do find cases called they do allow for distraction blows these little elbow blows but i could not find a single case that allowed a police officer to be standing and kicking somebody do you have a case again exactly the situation where the suspect already on the ground he's on arm and he's surrounded can you think of any case that says it's not excessive force for one of i do disagree your honor i think you can see any strike in the night i think what you're referring to is when officer mcintyre is is moving around and trying to get in and assist i don't think it was a rare back  and attentional kick i'm trying to hurt this man and i think it was there he didn't deliver the new strike which he admitted to and that is an inappropriate distraction ery technique  just a step forward trying to get through the mail you know in this this all happened in less than sixty seconds this is exactly the tense uncertain rapidly evolving situation that qualified immunity existed and they all perceived as resisting and i think that's another place where the district court erred and that the district court found that it was possible that an officer struck mister tucker after he was complian at no time was there a finding that there is any strikes after the officers perceived that he was compliant and when you look at that video you can hear mister tucker's groan from in the background stop resisting put your hands behind your back stop resisting so this isn't just the all the surge protection that he's resisting this is a citizen standing by that sees you know kicking his legs flailing about refusing to comply with their commands that he  pine are you referring to after he was i'm sorry sit when you refer to the fact that he was being compliant at some point are you referring to the time when he was already at simple right in when you watch the video you hear them say put your hands behind your back stop resisting and once they stop giving those commands you can see the four stops as well they kind of all step back so i think it's very obvious that it immediately once they perceive he's no longer resisting it there before stops and so that's one thing i believe the district court erred in failing to look at it from the perception of a reasonable officer because while they perceived he was actively resisting and perceived that he was potentially a threat they used they didn't use force it was not excessive force even the district  i mean it was noticed that it was a limited wind up it was not punches with maximum force they went from verbal commands to a takedown to hard indian techniques but they did not use a baton they did not use a flash immediately stopped what season handcuffs and they bill believe that he is no longer resisting and i think that's evident from the video because you can see them all sit back and then they stop not one time to establish a he was struck after he was handcuffed he was kicked after he was into there is no evidence of that whatsoever in the record and so i don't believe plaintiff can satisfy his burden in that any reasonable next mister seely no will explain how the officers conduct after mister tucker was on the ground receiving punch after punch in crying out in pain was also when reasonable even after he did this restrain was clearly established in violated his constitutional rights we respectfully before you begin to think implicit in your division of the argument i take it you have no of course denial of summary judgment and qualified immunity for these that it says because no reasonable officer within a minute in twenty four seconds from the time mister tucker voluntarily stopped his car and still he was argument entirely depend on there being a question of fact as to compliance in other words if the video is conclusive that he was resisting then cases like griggs and pool would apply justifying  non deadly force do you agree that your human terms on us accepting that there's an issue of fact and i know that just or did as to whether he was compliant or whether he was resisting well you unreasonable for an officer to put him prone on the ground quickly in other words if he were resisting standing up right next to the officer the cost going on you wouldn't argue that clearly established law th some minor like pushing a way or really saying you know there have been several other cases that there have been some sort of resistance and they still have found that the level of force that was used was and that little bit of an uncertainty or a law that's the passive resistance cases and i didn't think you were relying on that because i thought you were agreeing with the district court that there is no evidence that he resisted at all right there there is no we agree with the district court's findings and understand the at this period at this point that we are now we're relying in accepting those actual finding that he was compliance and they have because of th assertion because you're right the district court did describe it as you sent but i just wanted to be certain that that was part of your case yes vehicle a dash cam video of point if tucker at this time shows obvious leading and injuries to the face and head if tucker that's the only reference in the complaint to anything involving  used what about could could we looking at the grand factor as to how do you how do you factory in that this man had essentially fled from police during the miles that he can't drive s oh i can see your time speaking was a constitutional violation for officers who immediately went to the ground even when that suspect had refused to put it behind his back when i was with question of him and had resisting and you there her rely on that line of authority or do you contend that it's a question of fact whether he was resisting at all which i contend that it is a question of fact whether he was resisting at all in the district court held the kids that appear were whole body kicks from a standing police officer or do you think the record is open that they were just jumping around him and those were not kicks that were hitting him the district witness may be his girlfriend confirmed a neutral witness confirm that he was resisting does the audio of these dash cams confirm that someone other than the police officer is saying stop resist a non police officer voice i'm not saying that i've concluded that i'm asking your opinion that indicates he was resisting on the ground your honor i would say that that is a question and i would like to go back and answer your question earlier and distinguished trammell and i do believe the facts of this case falls where late in line with the grades authority versus the trammel authority in trammel it was very clear that vehicle he was not verbally aggressive up believing that the distinguishing point do we have to just say that the district judge who has committed clear or saying that whether he was compliant or not is an open question looking at the video do we have to say this video cuckoo simply or blatantly robots whatever the expression is i don't believe you have to say that your honor but i think this air from the district court is that they get the district court did not complete the analysis the district court failed to look at the facts from the perception of a reasonable officer the district court simply failed to do that in trammel there were this court found that there was sufficient from which a reasonable officer would perceive that he was resisting and that was the distinguishing factor here just like in greg's there were actions by the suspect respectfully that's not that the issue that's not the inquiry for this court i thought in trammel the majority rights just as in goods and it appears the trammels physical resistance prior to being tackled was his attempt to pull his arm and and that seems like exactly you said it was the head jerk in the arm pull out how is that in any way different because you have to look at the totality of the circumstances trammell had not led officers on a two minute chase he was not a aggressive he was not banging his hands on the hood of the vehicle and cursing at the officers it was a very calm situation that had not evolved as quickly as the situation with mister tucker when  officers arrived and mister tucker they were already on a very high alert he was very really aggressive he was slamming his hands down on the hood and that those are important that as to whether the officers believed that additional force was necessary in order close pretty clear that for verbal anger to qualify it's got to be a threat it has to be putting someone in danger it can't just be that the citizen thinks why in the world are you chasing me at midnight because of a brick like that that's not enhanced in the graham factor danger that's just a person who really upset that they're being arrested for a break like correct but your honor also sisko had not completed the pat down they did not know if he was still quire and he was very tense and all of the officers even officer johnson who was a rookie at the time testified a hell surprised he was at the reaction from mister tucker because there were now three officers present and his his reaction was not to comply it and to pull away and so for the officers of this court has said that for officer safety they can detain him whether that on the ground or standing up for all sort of safety they can detain the suspect and that's what the op is were that certainly all the officers testified that they could smell it both on his person and in the car so that there were there was never a blood test to confirm but certainly all of the officers suspected that  degree the proper inquiry is whether the force used under the facts as a reasonable officer would perceive them and so i seem that my time is up i respectfully request that this honorable court reverse the decision of the district court and enter a judgment granting the motion for summary judgment in this matter finding that all of the officers are entitled to follow for an immunity thank you ms buckle thank you both especially the clinic will also just as especially you miss my go but it's nice to hear from students we appreciate the effort in this case is the minute