record and there there should be no qualified immunity in this just as he is in a nonviolent non criminal non threatening individual is a clearly established violation of  domestic disturbance so my for my question is really want one of fact as i understood from the briefs the father of the victim of the tasing actually brought her to the police station because there had been a prior conversation about the young lady needing to some exposure to law enforcement to perhaps scare her into better conduct is that correct so we say and i realize domestic disturbance an encounter encompasses a lot of conduct she's there with her father and then these officers and perhaps others as the father and this and you state that they were in the car and there's a dispute as to what went on i just want to understand that this encounter with law enforcement was not the result of any unlawful activity or crime evidence that is in this record to say one way or the other of what leads and salinas knew about whether she had of or not committed scene he's not party to this just going to back out to make sure you're not talking about the concern the father had the pre daisy's avenge when you say domestic disturbance you're talking about what happened between the daughter and the father the daughter they saw that there was some sort of argument but that's not necessarily enough to rise to mediately teasing her when she's running that's assuming something that whether or not she was committing a crime she could have been fleeing any sort of incidents it's putting assumptions on what went on and just assuming that she was a perpetrators something of those nature of that nature would you agree or not that that issue that is before us and before the district court is whether always good to know that she had not committed some offense and if that is a proper issue was she evidence on that yes john that is an issue of whether or not they would have reasonably assumed that she was committing a crime mr kenyon has stated as well as her father that she wasn't never touched any officer that she was never resisting at all or to any officer however the other officers dispute that they saw some sort of argument that they saw something else dismissed you know there was nothing further that went on with in two thousand also this is two years before the facts of this case miss penny wasn't committing a crime she wasn't threatening any officer and she wasn't evading arrest it's not shoot she wasn't being detained for any sort of crime at the thought some sort of misdemeanor some reason is might could have seen that a misdemeanor had occurred what is the law on whether they could have used a taser on her of her trying to escape from the commission of a misdemeanor when she ran from the car and that's even assuming that she was committing a misdemeanor the officers st assume that she was committing a misdemeanor and then proceeded that that was the the best method to detain her was teasing her here that's not the that's lieutenant say to taes taze days and that is sufficient to impugn him with supervisor is there a dispute that she was running into a hazardous situation as i understand it she's running away and there's a traffic or a highway or a roadway where vehicles are driving and she's running into that is there a dispute that she's entering a hazardous area where she could get seriously injured to that it's she was riding into the back alley the street was twenty miles an hour the officers allege that there were cars there however there's disputes as to what car was there whether they're even was a car there additionally there's a grassy strip of on the side of the road so she was taste far enough back from the road that they could have assumed that she could have just pivoted and turned around the grass they assume that she was going to run in the street additionally she's a seventeen year old she could have stopped if there were any cars and from from the side of the street she was running towards would be blocked and you couldn't see if there were any cars at the view of those would be blocked by the buildings or something like that i paused to miss the where where the people were standing in train the young woman running you know they didn't see any car right there or their buildings obstructing the view of the passing traffic that he would potentially be running into do with those that lay  enough to ensure that yes there are buildings on each side of the room when they run up however she was teased so far back she was teased feet multiple like several carling's tennessee from what the intersection that means that she had plenty of pivot additionally there's disputes as to whether they were even cars on the road as well as there's disputes or whether or not it was a high traffic street some officers say that there were a lot of cars on the road and there's other testimony that state that it's a back alley and there's very few cars that drive it drive there and it's only twenty miles an hour it's not a very fast moving it's not an interstate traffic that she's running into it's a it's a back alley that's us that's slow moving traffic so i asked you officer solis there is an affirmative act that he ordered the tasing additionally it is there a search summary judgment should be denied as there there's a clear violation of first of all what i think you're all looking at is the elephant in the room which is a huge elephant is the cell of issues which says that it's got to be unquestionable that prior situations would discuss would determine whether the facts in this case would show that the author was should have known that what he was doing violated the law let me give you some of the facts and clarify some of the facts as you were asked about your software as to what actually happened there's the dispute as to what happened before officer available showed up off the ballot testified that the father and the daughter were struggling and that she attempted to run into main street there's main street washington street and meet us for this made us all this is what she refers to as the alley it's actually a white alley it has cross traffic it's not real alley he has a speed limit sign because it's a small street in any case that she tried to run in to main street he caught her brought her back plaintiff disputes that so that's a fact issue what they do not dispute is that after he got her he put her back into the car  showed up and officer bella is attempting to figure out sort out the circumstances actually as judge smith said in the original video one case pretty  was something going on sorry i'm having trouble trying to keep a reference but he said there was  know he said that there was something going on there was at least some circumstances going on inside that vehicle and at the very least judge bell i'm sorry charges but as a former judge the officer who showed up on the scene he was trying to detain her to sort out the circumstances that's the language that judge smith used in the original pinion that he was trying to sort out the circumstances though the backseat struggle there was  probable cause retain her at that point for disorderly conduct now as judge graves joined in the per curiam opinion in zimmerman where there was a heated standoff the middle of the street and suspect ran and he was tasered an officer is entitled to temporarily detain a suspect to preserve the status quo for safety reasons until the intentions of the suspect could be sorted out and to use reasonable force in doing so and in that case i believe there was a tasing in that circumstance that was area that you're talking about is basically two large walls with a street which is washington it's a one way street city hall and the police department next are worth the time she bolt out of this door she starts running s automatically starts running after her now at this point felice is behind salinas he sees her running so lease sees a red car going to the east disputed though there contrary evidence this summary judgment stage that there was no car it's not to speak well it's not disputed that there was no car the only dispute had to do with the plaintiff miss penny said she did not see a car that does not mean everybody wanted me i'm sure it was running looking that direction that's contrary evidence well she was looking straight ahead all she said was that she did not see a car and she was she also said that she may a teenager three year old i'm worried about a three year old enough i don't know about maybe really worried about a three year old running into moving traffic if well a teenager running in the moving traffic with their concern that was their concern yes  didn't they have a policy that you don't use a taser against a fleeing mr mean i don't know if they had a policy i know that they were trained on that that generally you should not now again remember we're looking at less than three seconds but they by taser in the back of the head what they wanted to do was stop her before she got a further or more significant possibly more significant injury the officer is working out of a running into training by running into track by running into by getting hit by a car and but here's what i'm saying is you had the all qualified immunity standard in the shilling for b holmes and johnson we were all the talk about significant and severe injuries and stuff i don't know that it would qualify or fall within any of those definitions what i'm saying is that yes it was an injury yes it was not a minor injury whether it was significant or whatever the classification would be yes she was hurt i'm not disputing that and what the situation here was what you're trying to do is keep her from getting very rare they didn't know they couldn't anticipate that she would get the scrapes that she got that she would lose the two teeth that she got that would break your teeth when she fell they couldn't know what it was but they couldn't is a paper what would happen if they got she got hit by a car so if she gets hit by a car the in that split nd is thinking what can i do what do i do maybe she would've been here to see to that chief and was not the apprehension of his correct person who possibly committed a misdemeanor disorderly conduct which resulted in a charge for resisting arrest actually resisting an arrest in a big question what was the rest he was actually charged with disorderly conduct resisting arrest and two other charges i don't remember what they were the district attorney chose not to prosecute for whatever reason and those charges were dismissed as actually four different charges including disorderly conduct which is what started it all now the question judge smith had last time was was she taste for her own safety or for the arrest and that's why i've been talking about the arrest so much the authority tourist yes they had the authority to arrest her even if nothing else just for the disorderly conduct they could have  just as they did in the zimmerman case at that point they had the opportunity to do that and when you're trying to nd guess an officer trying to make a split nd decision there is no clearly established law that says an officer cannot do that for safety purposes if he's doing it and you're looking at what he's thinking at the time not necessarily what she's thinking at the time if you look at what he's thinking at the time you have to ask was it clearly established would it have been ok to use shooter in the lead people ok maybe you're going off we're going off tangent here because i'm just asking whether or not you think that would be ok i don't know i don't know because i have not seen a case that talks about when an officer is entitle to qualified immunity and to what extent preexisting precedent which show that i'm not aware of any cases that say yes it's ok to shoot a person in the leg while they're running i haven't looked that up so i can't tell you one way or the other whether there would be i would assume not but i don't know what i'm trying to show or look at here is the facts known to the officer at the time whether it's for safety purposes or because she had there was sufficient basis to detain her or even to arrest her for disorderly conduct based on that language based on that those factors the officer head at least the authority to to take the action of tasing and there's no case case law prior to now that says back to what you just said something that the question i was about to ask what did the officers know at the time i want to go back in time of just a few maybe even less than a minute or two pena's father parks the vehicle on washington street in the slot closest to main street called into the record all right somehow and my fall a few car links before the street because of that split nd action when selling us tasered her she fell right next to the stop sign and yes there were pictures in both of our briefs that show this whole area there circles next to the stop sign where she testified she fell which was again the building is maybe two feet from the building a but the me that's all the street it's on the side of it there's not a lot of room beyond that if she had not fallen right there she did not fall clearly far back this is not a situation for example i can call the carson where they had an opportunity to warn her to to t action to say i'm go if you don't get down i'm going to shoot or i'm going to take action there was not enough opportunity for that at the moment she got tase she felt right next to the stop sign which was right next to me that's on the street right in front of minnesota's street and there was no indication that she avoid an investigatory stop and applying a single taser shock would be objectively unreasonable it was a question recently about where there was more than one taker shocker but he agreed it was just one and she fell down immediately and no other action was taken after that these circumstances no question i don't think anybody is going to dispute these circumstances are unprecedented in case one and if there's no precedent to establish that the officer should have known not to do this then  entitled to immunity unless it existing president squarely governs the specific facts and issue places a statutory const could constitutional question beyond debate and that every official reasonable official would have understood that he's doing violates that right there's no prior cases that talk about taking some suspect to prevent the higher risk of injury there are none and that's why we were further to the cases on whether it's reasonable to fleeing i'm sorry to tase a fleeing suspect when you talk about arrest all the cases talk about the arrest circumstance and that's why i mention the aspect of there was a basis to arrest her and there was a basis to detain her ask  word or two i thought it was an instruction to the other offices and it was a warning at the same time disputed that's a classic example of why officers are entitle to qualified immunity as the court again said in coal i think is in the majority opinion although she may have disputes as to what she was thinking despite the many red flags listed by the sense as known to others only those known to hunter and cassidy which are the two officers are relevant to qualified immunity analysis what they're saying what you all had said was what matters is what the officer is seeing and what he's perceiving at that time the conduct viewed from the officers perspective that's what the supreme court came back with can play be hendrickson which came out most of the briefing in this case  problems with your position is just the evidence what went on in that car what would i reason officer have seen and thought might be going on both inside the car and as people  sees me it is significant at least as to the object really reasonable belief that any kind of mr meaner had occur isn't there enough why why isn't there enough dispute as to how significant this sort of interaction involving the daughter or the father in vail are and what was physically done isn't enough why isn't there enough there to say at least as to stopping a misdemeanor from escape misdemeanor from escaping that is just too much to mind dispute a fact there well what happened with up to that just before i'm having trouble with the timing because i've been trying struggle occurred some enough was actually standing behind i'm sorry but that was inside the car basically trying to get her she's struggling there's a disagreement as to whether she hit  the microphone being recorded i talk a lot and if nobody ever complains they can't hear me salinas meanwhile is behind officer bella but she can't do anything because he's blocking the door he's doing all that he's she's behind him and felice is behind her and that's why she's over here so when miss benette runs out of the passenger side door she's the closest one and she gives chase our accounts your time's up intersection traffic show that taser officer still listed early tensile as i apologize regarding the intersection when she came up on the intersection she was on the right side is that she found near the stop sign and any traffic coming that her way would have been visible from the street just based off of the positioning of where she thought on the street i actually take her is not a warning this is in the record at eleven o ask you if we were to agree with your position qualified immunity would become an issue for the jury in this case is that correct in other words the jury would be instructed under the pattern instructions as to the application of qualified immunity and then the jury can sort out the facts and applying the instruction is given make a determination then as to whether or not qualified immunity applies is that right  honor it's a question of law it would be decided by a judge and believe you you don't think there would be if a lion on the jury verdict form that would say yes or no as to qualified immunity and job and you also had the opportunity to get asked a question that you may not have fully anticipated at the end from judging a heart that doesn't quite fit into the case yet but it's relevant in our sort of considerations but job well done wel