and the last case is germane can't versus zachary brown that claim because the hack order is inextricably intertwined with the qualified immunity analysis in this case in my view  inextricably intertwined evaluate that phrase i think it's obviously intertwined the question really is is it an extra couple and i don't know there's a lot of authority on that point but here's my argument the inextricably would mean that one cannot be decided without the other no that being said obviously that could happen the better question i think is that good or as case there's a in the name of the case escapes me there's another case where that the jurisdiction was refused in the circuit so i think there's an internal split as well but that's my view on that you're on where i think you can't we can't look and decide whether the officers in this case used excessive force and whether it was clearly established that the force was excessive without looking at the resisting arrest conviction you can but my position is you shouldn't that that's that's what the where the inextricably comes from and that's because of what justice sc imply he's a fairly broad term implies the invalidity of that conviction and maybe the root of it really is it goes to the policy behind qualified immunity that the but the district court in its order stated that it rejected brown's arguments because they rested on brown's version of the facts and i respectfully the disagreed with that interpretation i'm well aware of the principle that on a qualified immunity summary judgment evaluation we must look at the facts in light favorable to the point  a conflation of the principle was just mentioned in the prior argument that yes the facts are viewed in the light most favorable to the plaintiff however the evaluation of force is done from the standpoint of objective reasonable officer one of the things that we have in this case that we don't have in the prior case and i don't think anybody disputes the fact that they can't said ok you got in the  under period that's it you got me i surrender and then his face is in the ant pile and then after that he's surrendered he's on the ground he's handcuffed he was taste twice and his head was put back into the end and can't says it was intentional and deliberate and brown says it was not yet says it was intentional and deliberate brown says it was not why isn't that a credibility evaluation for the fact finder especially if we look at the evidence at a light most favorable that can well i'm a couple of responses to get to that to that position in his deposition which isn't really the that is a subjective matter you know where you may have a say the suspect say i surrender subjectively and i guess that's a fact to be considered perhaps in the in the calculus of the whole thing but objectively from the standpoint of an officer who's now i try to initiate a traffic stop in the evening the person bolted ran through several backyards around a shed and then drops in their knees and says ok you got me i don't think you have to accept ok fine everything's fine i don't have to touch i don't have to copy just get into the into the car so that fact even crediting that's the only graham versus conn factor that i see and argue with me that favors the officers that he ran away and he had to be said there's three other factors and one is was he an immediate threat to the safety of the officers it seems to me that favors can't because if the initial force that was ease may have been justified but once he surrendered he's no longer a threat to the officer once he surrendered his guy's face and that it yes in a threat to the officer anymore i would disagree  that i think we have to look at this arrest as a process and it's not complete until and this is what i see in my brief in this is from case law until m is under control not resisting and abetting commands now even kid says he's screaming and lifting his head up because his face is in and out but but the officer didn't pick the ant pile as the place for the arrest back in that fire and he had hundreds of fire and bites to this face neck chest and eyes were grog hospitalisation physical and psychological injuries and officer is justified in using that force i mean the issue is whether or not the force was excessive you can use some force with excessive force of cells in my faces and they have the officer sees he's got that all over the upper part of the body with ants than the officers justified in putting his face back in the there's no evidence the officer saw and so biting him all over his face this is in the evening in the dark this is a fast moving process he tackled him to the ground he's squirming he does say he already surrendered well that's a subjective he may have subject ellingson surrendered by his words he surrenders is not the crux it's whether he was under control not resisting in a bane commands from the objective viewpoint of the officer he was still resisting now you might it may be made of it because of the ants but the place where this happened was not selected by please the court stanley blackman for the appalachian me can't under the plaintiff's version of the facts in this case officer brown knowingly and intentionally hailed a compliant non resisting non threatening suspects hid in a pile of fire an expletives at him while on top of him and then tasered him after he was handcuffed the district court found that this conduct was objective leon reasonable under the circumstances and that this court's precedent clearly established that this is what precedent is that that you non resisting non threatening suspect violates the fourth amendment and indeed best case your honor that would for example in brown versus the city of huntsville this court held that it was a clearly established constitutional violation for a police officer to use pepper spray on a suspect who had submitted to the officers authority even though that suspect was not yet restrained and this court has recognized that a case does not have to be directly on point there can be notable factual distinctions between a prior precedent in the case of issues so long as the constitutional question is beyond debate and so the lawfulness of force does not depend on the precise means that an officer uses to apply it and qualified immunity does not protect an officer just because he's means of applying gratuitous force may be allegedly novel and so in this case the graham factors that govern the objective reasonable miss the force they favor mr kant in this instance not the person who ran away after the traffic stop he was ordered to stop and that's correct your honor but the second and third graham factor is whether the suspect poses an immediate threat and whether the suspect is actively resisting or tempting to flee favor mr kant and so did and so based on those factors viewed in the light most favorable at the time officer brown use the force complained of the intentional exposure to fire ants and then a tasing after he was handcuffed to any resistance  those factors favor mr kin and officer cannot use gratuitous force just because a suspect in this family fled as the district court recognized this court's precedent clearly established that an officer cannot hold a complete at the at the point  t becomes compliant and officer cannot hold his head in a pile of fire ants yell expletives at him tell him to put his face back in a fire and pile and then tase him after he was hand to the extent he remembers what was the length of this encounter from the moment that he went down to the ground to the time that he was lifted up with cuffs on did he did he specify a time frame was he asked about a time frame your honor he was asked about a time frame but he did not know exactly how long he was in the end the record reflects that it was long enough for him to receive anywhere from hundreds to a thousand accidental on the part of officer brown the exposure to the fire although mr kant may of at the time he dropped to his knees and surrendered may not have known that a fire ant pile was there as soon as he informed officer brown the fact of the fact that his space was in a fire and pile officer brown this did not then remain accidental or incidental officer brown said i don't care put your face back in the fire at pio and then held it there so even if it's true that initially officer brown didn't know or mr can't didn't know that they first stop by a fire and pile the complaint of use of force is that once officer brown did know that he intentionally and deliberately expose mr kant to that gratuitous and as the district court recognized reasonable officers in brown's position should have been on notice that holding mr cain's head in a pile of fire ants and then tasing him while he was compliant violated the fourth amendment because this court has repeatedly hail police officer does violate the fourth amendment when he uses gratuitous force on a suspect who is surrendered and no longer poses a threat and obviously brown's argument has been that the district court applied this constitute or defined the constitutional rule at too high a level of generality and that instead this court this court precedent only clearly established that an officer couldn't use gratuitous force on a suspect who is quote under control and fully secured there are two problems with that argument first even if control is in issue this court's cases recognize that that control is a stablished if the suspect is has submitted to the officers authority and is complying with the officer's commands so for example again in brown versus the city of case before this incident this court held that it was a clearly established constitutional violation to pepper spray a suspect who it submitted to the officers authority and communicated her willingness to be arrested likewise and resources herbert this court held that it was clearly established constitutional violation for officers to kick and beat a suspect who was lying face down on the ground in smith versus maddox and one thousand nine hundred seven case this court held that an officer could not use quote removed any doubt that a police officer could use substantial force on a suspect who had ceased any resistance or threatening behavior and that's exactly what this case is at the time officer brown used force at the time he intentionally such a suspect violates the fourth amendment clearly violates the fourth amendment turning next to the hate they should they can't this may be getting into questions we don't have to decide now but given that mr kant was the one who decided at a certain point in time to say you've got me i basically give up and stopped at a certain point if the officer had just put him on the ground enough time to put his hands behind him and c and bring him up the fact that he may have been bitten by a number of fire ants during that ten or fifteen seconds would that that would not constitute excessive force right that's correct dr but the distinction here that is not this was not some incidental force this was not incident to the wrist no no i i know the facts here allegedly are different than the hypothetical but it goes to show that the claim is really based on do turn on intentional actions of the officers and in most cases and that's what occurred here that there was intentional exposure to fire ants under mr kant's version of the facts and then intentional tasing after he was handcuff and turning to the hc issue the district court correctly denied that motion as well but more importantly it's not properly before this court interlocutor reviewed the denial of a hit by a summary judgment motion is not a final decision it doesn't fall within the court's opinion appellate jurisdiction and it's outside the scope of the collateral order doctrine indeed a panel of this court recognized just that harrigan be measured a police department station number four there that hair again like this case was from a denial of qualified immunity this court affirmed the district court's denial of qualified immunity and also refused to consider on interlocutory review the district court's rejection of the officers heck defense the court held that it didn't meet the collateral order doctrine and that it was inextricably intertwined with an appealable decision but this court has explained that pendant appellate jurisdiction does not exist if the if the if the appealable decision here qualified immunity can be resolved without reaching the merits of the non appealable decision here hc and that's the case in this court can decide whether officer brown violated mr king it's clearly established constitutional rights based on his version of facts without even asking whether mr kant was ultimately convicted of anything and for that reason the panel and harrigan recognize that not only were hc in qualified immunity governed by quote completely separate and unrelated analyses but they were indeed not even closely related questions and al officer brown his argued that this court should consider the question because it's in the d n a of the qualified immunity analysis the supreme court rejected a very similar argument in swint versus chambers county commission in that case which was an appeal from the eleventh circuit this court exercise pinin appellate jurisdiction to consider the question whether the county was an official policy maker and the court justified that on considerations of judicial economy arguing that once the  pretrial process had already been interrupted by an appropriate pretrial appeal there was no cause not to consider defense is that could resolve the entire case the supreme court rejected that argument holding that it drifted away from the statutory commands of section tw one and the final judgment rule and so sweet makes clear that considerations of judicial economy cannot trump a clear statutory command and nor is hc like an immunity right that would allow it to be  explained that quote hc was not intended to be a shield to protect police officers from section one thousand nine hundred three suits but when the supreme court allowed denies a qualified immunity to be immediately appealed that the supreme court recognized that that's because i'm unity could not be effectively reviewed on appeal from a final judgment because it granted the right not to be tried and that right would be effectively lost if it were erroneous only permitted to proceed to trial is not an immunity hc is a mere defense to liability and hc is not intended to protect police officers from suit and so that's why the ninth circuit in cunningham versus gates recognized that hc unlike immunity right can be effectively reviewed on an appeal from a final judgment without departing from the hold the purpose of his and for these reasons your honor although the district court's heck ruling was correct it's outside of the scope of this court's appellate jurisdiction and so this court should affirm the district court's denial of qualified immunity arrest process is over they're up there moved somewhere else almost all of them to my recollection involve that that kind of context and that is what i tried to portray in my brief why this one's different this case is arrest process is not really complete when the second tasing happens the arrest process are still on the ground he was still a threat just because someone's handcuffed doesn't mean they're no longer a threat that there is there is simply no way they could do all kinds of things that they're not of they're no longer a threat until they're up in under control in a way that's at that's that's my view of that so i think that's if they look very closely at the cases cited by the district court and my colleague but they're quite different from the the district judge said it is order of i can't tell if the plea was to obstruction because he ran or if the police to obstruction because he resisted during the arrest process i'm paraphrasing but i think that's what the district court said but curse to me that hypothetically let's say the state of florida after this plead refiled a second information and said we think your plea was only two running we're not going to charge you with misdemeanor obstruction during the arrest process what would the criminal defense lawyer do worth their salt double jeopardy and my plea resolved everything that was in the if that's not what happened no i understand but michael but he pled guilty only to the actions proceeding his surrender in iraq right he didn't plead guilty actions after his surrender and i don't and i don't i don't i don't agree with that characterization of the record and i think what you have in the record are it's from the criminal case file and this was proved up and it's the the incident arrest report itself is filed in the criminal case there's the information which is not particular it just says obstructed in the lingo of the statute and then you have the the plea document which is court is in recess until nine o'clock tomorrow morning