court improperly applied the de minimus standard to the nature and extent of doesn't lewis's injuries rather than examining the nature and extent of the force used by corporal chris or the law in doing so the district court failed to properly analyze whether corporal bore long used unreasonable and excessive force in violation of the fourth amendment when he repeatedly struck mr lewis while he was handcuffed viewing the evidence in the light most favorable to mr lewis as the co was required to do it summary judgment mr lewis was not resisting and all of the factors under graham first connor weighed in his favor as such the force used by corporal or alarm was unreasonable excessive and in violation of clearly established law within the fifth circuit therefore the injuries mr lewis suffered necessarily exceed the de minimus threshold and are constitutionally cognizable now in order to properly evaluate these claims we have to stated that there was no severity requirement as it related to an excessive force clinton rather they had to look at the context in which the force was deployed and then analyze whether or not the injury arose from constitutional or unconstitutional uses of force now this circuit made this exact point and carried that the holding of hudson over to the fourth amendment jurisprudence in fourth amendment excessive force cases saying that the amount of injury required her veil is directly related to the amount of force that is constitutionally permissible under the circumstances and as recently as the case of sam vs richard this court held that there is only one inquiry when it comes to set excessive force case and that's whether or not the officers use of force was reasonable any injury that that's presented even in significant or purely psychological injuries will prove constitutionally cognisable so long as it arises from excessive force that that that does seem reasonable to me as the description of the law regardless we have more than one here admitting that he punches him three times in the face so tardo me to imagine that wouldn't suffice as an injury so then just who does reduce to the numerous video audio all of that stuff here show that your client was resisting that that's what it comes down y it was written by your honor but in that case it's important to note that all three of the factors underground weighed in the officers favor there you had a severe crime of a driving under the influence you had a threat in the fact that that individual was i believe the term used was persistently resisting and you also had an undisputed fact that the that the arrestee actually kicked the officer here that's a disputed fact there's only one person in this case that says that doesn't lewis kick corporate board along and that's corporate board and there were five other officers on the scene that day none of them saw that doesn't mean lewis disputes that fact so so griggs is distinguishable on the facts in the sense that all of the grand factors weighed in the officers favor and your honors it in that case i would agree that the that the ultimate conclusion there that the officer was permitted to use some force to effectuate the right the arrest was proper but it's case at what point in the end cam or see hand count very early on your honor i don't know the exact time stamp from the video but he was handcuffed and then for about a minute he was sitting on the steps of the apartment complex after he was handcuffed he was sitting there for a minute and that's when corporal bordelon and corporal owen arrived on the scene and they acknowledged first of all that it wasn't the armed robbery suspect that they what they thought he was everyone at the scene acknowledged that what  followed was they stood doesn't the us sob they began walking into the vehicle and there were a couple statements actually made by the officers and pardon my language but the statements were i'm going to knock your motherfucking teeth out and if you move again i'm  force that was used we do have to analyze the gram factors in this case and so that the crime that we're talking about here fleeing the officers or resisting arrest by ignoring verbal commands not physically resisting but ignoring verbal command this is this court previously had occasion to visit that exact crime in bone versus dunaway and in that case the court held that that crime was of minimal severity is all that the individual had done was it was walk away possibly bumping the officer and so that factor weighed in the arrest of the plaintiff's favor in that case and in this case when you look at the remaining factors also in the light most favorable to mr lewis they all way in his favor mr lewis maintains that he was not a threat six out of six officers maintain that mr lewis never verbal lease threaten them and that he did he exhibited in the o p s bizarre behavior it would indicate that he was not mentally stable and anytime they record a sound i believe they did your honor at some point i think he did mention that the officers that he was on the way to get his psych medication when he when he was arrested he was allowed admittedly i believe that resisted arrest and just so you can address it most forcefully i think what they'll stand up and say is what's undisputed when they told him to come here a number one number two it's undisputed when hades confront instead of getting down hayes has to take him down then he gets cruft and i think you could maybe they'll argue that the hayes borneo will say it's also undisputed that they keep saying stop pulling away and he never says i'm not pulling away there is colorful language and then the final point they point to as to an undisputed fact as to resisting arrest would be he admits he didn't just get in the car so saul addressed each of the first vote with regards to the running i don't think that even even in this situation the fact that he ran from the officers does not give them carte blanche to use force and the reason being is that there was a minute done in front of him in front of officer a's in which he was fully compliant officer hayes did take him down and we're not alleging there that that the force used by officer hayes was unreasonable he had to effectuate the arrest and handcuff the suspect and mr lewis was then compl so so what happened what happened that required he's being taken down so so he approached the officer initially asking the officer for help he didn't know that the two individuals chasing him were police officers so we saw a police officer he came out and he put his hands up and then in the audio you hear about one point say oh god please no and it's officer he says testimony that he had pulled out a taser saying get on the ground at that point  eventually did get on the ground there was a brief struggle were officer hayes had to get his hands behind his back but he did eventually effectuate the arrest he did and cuff him and then he was compliant for over a minute until corporal bordelon corporal only came on to the scene basically repeatedly yelling at him you're going to jail you're going to jail and that point though that's when they begin bringing him to the vehicle now as it relates to the  i believe the next point was when he was cuffed when once he was handcuffed and walking to the vehicle you had officers repeatedly and would you say that's where we start the analysis i think so your honor is because the force wasn't actually deployed until doesn't move us was in the police vehicle so he was in the police vehicle and that's when the baton strikes happened that his rectum was crowded and he was punched in the face repeatedly so so not to say that the other parts are irrelevant but but when we're looking at the the context in which the force was deployed i would say that it starts over once mr lewis is compliant on the scene he stood up he begins walking to the car he hears these threats from the officer and admittedly there may have been some verbal resistance whether an individual is passably or not resisting at all and still can't use force against them you have to use reasonable force and in this case we're talking about are are strikes to the face now me on that when you say this court's precedent because i am apprehensive if we get into the world of resistance and passive resistance what what case is most helpful in that regard so your honor there's a couple cases brown versus lynch bush versus strain anderson verse mccaleb newman versus gadgetry all explore the difference  actively resisting person can be forcibly subdued but a passively verbal resistant cannot be so so if an individual is not actively resisting i believe it was from is actually cited in darden citing back to those cases stating that the court's precedent is if that if that an individual is not actively resisting or fleeing that that the use of force such as repeated strikes to strikes the body are our own reason we have to credit the audio that says he's pulling but no you're on his we don't and there's a couple reasons why the first and foremost when when the when the officer say he's pulling away that's as they're walking to the vehicle so as he's walking the vehicle there wasn't any force actually deployed at that point and whether he was he was jerking away one way or the other i still don't think that counsels the use of force later on that we're talking about and even if it did we're still talking about it incident completely outside  sure that point at that point no you're out of there isn't because what so once he gets into the vehicle there hasn't been any on reasonable force the reflection waiting the arrest he gets into the vehicle and that's when it starts so what the testimony is is that out of the car that's that's correct or just and get into the carnies hit his legs he said get those legs in the car right but he wasn't physically able to because he was trapped on the floor of the vehicle he was attempting to comply and one of the points t made in their brief is that his legs were squirming while in that position of course they're squirming is he's in a position where he can't move it's a damned if you do damned if you don't either he's trying to comply by getting in the vehicle by moving or he's not car they're partially there partially out of the vehicle yesterday and a video shows there what the video the video doesn't show any of the actual force used with the video ends up showing as mr lewis i believe my time is up your  yes ok what the video shows is it is is shortly after all the forces deployed mr lewis on the floor of the vehicle not resisting and the officer still screaming at him to get in the car despite even once the door closes there are still yelling at him to get in the car and that's one more piece of evidence why we don't necessarily need to credit the statements before about stop resisting is being gospel truth because what this evidence shows once he's in the car is there still yelling at him to get are not crediting and taking from the scorched jurisprudence is that the analysis is what was the officers perception what was the reasonable officers perception and in this case officer or corporal borderline reasonably perceived mr lewis's actions as resistance and i think when you take the statements of mr lewis himself and this is what the district court did and that he was squirming in the car he admits he even turned over his legs were out he says yes i was moving so i think when you take those statements that apple is in their brief cited several cases  he was moving so corporal bordelon didn't immediately take out as baton and start striking his legs he first tried to pick up his legs and help push him into the car in the face after he struck him with the baton so we put squirming and moving that when you look at corporal borderlands perception that he was actively resisting then i think summary judgment is absolutely proper and i think this is the exact i mean if you look at the facts and grades which  was written by judge dolly i think expression when you get to the part where both suspects were in the vehicle both work were kicking or believed to be kicking both were handcuffed and that is i mean the language in that case but specifically says the inquiry is not whether the suspect was actually resistant resisting but it's the perception of the officer and here i mean if you listen to the audio i mean from the very moment that it begins all the way until mr lewis is taken to the hospital he has not short of words but and minutes he's clearly very ask them why he's been arrested when he's making the statements it begins as soon as if you listen to the audio it's clear that those statements begin when corporal bordelon tells him to stand up and they try to begin escorting him to the for something that they've now said he didn't do he was being written he was being arrested for the offense of resisting an officer which the district court found was a lawful arrest and the appellant had not the chest and on the back down their sleeves and the officer that was in the passenger seat that beckoned for him also had on a baseball cap at that police do you agree that the video which is tones yes doesn't because it starts which as you indicated earlier in the whole time you can hear corporal bordelon stop resisting stop pulling away and i think that's important because it shows his perception in the moment that mr lewis is this testimony he acknowledges he was moving around and but moving around isn't picking so i guess my just he seems like he let me finish it seems like he is that a certain point yes your honor and then what happens next on the only thing that we have that's irrefutable the audio has the police officer saying stop pulling around or i will fuck you up and then the audio definitely has him groaning and yelling in pain so this is a man that's been carved and they've gotten into the car it may even be they have to hit his legs to get the long legs in the car but why then strike the handcuffed man who's in the is over and over that he's squirming he's moving that of course my legs were moving him but he never did he never denied his kicking and so i think that you do have to look from the from the officers or  started kicking at that point he pulled his baton and struck his legs just as he was taught to do and the academy that did not work he just tried that mr lewis continued kicking so he put the taser they didn't proceed to other not less lethal weapon distraction strikes for a reason and because that goal was accomplished he delivered the strikes mr lewis was distracted long enough to stop kicking and to stop the physical resistance that corporal owen was able to pull him from the other side and professing his innocence but if you listen to the audio tape he never did that continue on the entire time and what connotation do we take from i gave up that would seem to indicate our stride in resisting but at we expect or want from our officers but this is what the qualified immunity standard is there for that this is the exact type of situation that exists to extend if they have a reason to to stop you if but what reason did they have to stop they had they had reasonable suspicion to believe that he was the bart burglary suspect so they had his arms i don't know where's the reasonable suspicion that this man just because he was black on that trail that's reasonable suspicion what else do they know about well they this goes to they had a suspicion to stop and question that this  reasonable suspicion it's suspicious suspicion to a stop and questions so that they could either that gets back to michael so the so if if they're coming at if i'm walking down the sidewalk and they're walking towards me and i turn and run that suspicion mr benjamin i think believe his name was but he would just walk down that trail they were looking around the apartment complex could see no one on the trail drove over to the other side and mr lewis was the only person on the trail and the manager had just told him that the suspect had just gone that way this wasn't a situation where he's walking down the street and they pick him he's one out of ten he was the only one and they motioned him to come back and he immediately fl depends on was the force justified i don't know i absolutely agree that it all depends on on the full worse but i think if when you read all of the cases that there is a distinction between  that conduct would be justifiable i think that this is a situation where there is absolutely no evidence that was presented to substantiate mr lewis's  no he did not scream it out in that something that is unimportant that is a misrepresentation that was made by pellets because one if you listen to the audio you can hear the entire conversation even when he is pulled from the patrol vehicle and been examined by captain smith and the other in that he can hear the entire conversation there it there is nothing there is no moment that it goes quiet in or it's correctional center this is after he it you know your and if you if you listen to the audio it absolutely does not say take it out and if i don't believe it's a matter of interpretation when you listen it clearly says he's clearly says y'all check it out it was that meat and this is from the guess he made it after he was that correctional center and he made that complaint to his grandmother but in terms of his mother of his mother did not say that she heard the statement while he was that one in high school in her deposition she says that when desmond called he told us about it and that was when he first called from jail and even the morning was listless and the mother testified that she was actually present and saw  but he did allege that he also alleged that he was bleeding profusely and when you look at the video that is refuted but in your own at the out although he made the allegation it's simply impossible when you look at the weapon that supposedly was at his allegation was forcefully inserted into his rep dom and captain says miss testimony that had that occurred there would have been excessive bleeding and there was no medical evidence no tests the only medical treatment he received was for lacerations on his hands and that happened when before he ever came into contact with the officers so i think when you look at the nature of his brunner's a few points i'd like to make for mediately i'd like to direct the court's attention to the case of wrong versus lynch where the opposing counsel has the same counsel cross for me in this case also in front of judge hicks of the court found despite video a evidence of a of an officer saying stop resisting stop resisting there was still a factual dispute that precluded the granting of summary judgment in that case the the plaintiff  don't recall which one had pointed out what do you reasonable officer perceives on the scene as a fact question it's an objective inquiry not a subjective inquiry and there were multiple officers on the scene here who saw what was going on none of them use the force that corporal bordelon did and we don't have to take for granted that corporal bordelon was a reasonable officer it's just as reasonable to assume that in this situation the strikes that he delivered to does move us were retaliatory and unlike point he was he was done virtually resisting it he doesn't so it doesn't necessarily mean that he was done physically resisting it and corporal boredom omes testimony in this case what was that he at six six foot three two hundred twenty five pounds mounted only an injury to the other hand i do because there are new witnesses your honor i believe it's six and i'll count them up corporal born alone admits there's lip was bleeding and he admits to causing it corporal owen says that his lip was bleeding corporal tang in his vehicle says clean your leg up that's that eighteen eighteen hours thirty one minutes on the dock he says clean your lip up doesn't lewis's mother says he was spitting blood his grandmother says he was spitting blood and desmond lewis says he had an injury so we have unlike a lot of the cases cited to by the appellate we actually have the defendant officer admitting to the injury here we don't have that in a lot of the other cases and your honor as a really just a video confirm that there was no blood on the pan no no the video shows excessive blood on the front of the pants and to police points about you know what the initial allegation was he thought it came from his rectum at that point he had just gone through getting beaten his rectum was prodded for it frankly he didn't know where the blood was coming from keep he it was more than reasonable for him to assume that if you felt a judging type motion that it possibly came from his rectum but it also came from his leg and i also want to point out here is a relates to the squirm in your honor if if if an individual's rectum is prodded by a baton it's more than reasonable to to expect some kind of squirming and it was alleged at the trial court level that he said y need to take it out it wasn't me that was in our response brief in summary judgment so that is also a disputed issue of fact and there are all the statements he made after the fact that captain ivory these are just self serving statements from him and family members trained medical professional heard doesn't lewis's statements that his rectum was prodded and she dismissed them and she said i don't unconscionably she said they were inappropriate and she didn't believe them because she gives nine one one responders the benefit of the doubt the allegation that he never reported this is blatantly false he did report it to captain i've read she could have reported it to captain smith she could have first reported it to the hospital where she was transporting him but instead she left it to desmond lewis to confront doctors in front of his own of users as to what happened and if i could just make one final point your honor in conclusion alternately in this case the injury and whether it transcends the de minimus standard hinges not on its severity but on the unconstitutionality of the force that causes it here there are disputed issues of material fact as to whether the force was unreasonable