to several police offices in the city of gretna connection with the incident that involved one kendall joseph i think that the facts and probably won't known to the court but i would like to point out that it was undisputed that the disini in this case fled from and ignored commands from two different offices that the seat jumped over the counter and after the area and it could be a stool when he was approached by the police officer and that he struggled against the police officers while he was behind the counter and the district court also found that during the struggle he was flailing his legs although during this trouble you could not tell whether or not he had contacted any of the offices counsel how do we have jurisdiction over this appeal given that the district court found that there were material fact issues precluding summary judgment well i believe that one of the material facts that the judge found is not supported by the summary judgment record and that particular fact is the fact that she said that there was a genuine issue of fact as to whether and if and whether or not officers martin and cost had knowledge of mr josephs mental problems and her reliance for that fact was a reference to the did not know that he had mental issues didn't the district court also find a number of other facts that were material yes she did and would knows preclude our jurisdiction would the clearly established law that these police officers allegedly violated and in fact she ordered them during the pendency of the most of the summary judgment to specifically have done a fi there clearly established right follow the supplemental memorandum and her reasons for judgment she said that they still did not of done the father right and she undertook the analysis on her own  there is the analysis in the record before us today of what the cases are that would preclude summary judgment isn't there a judge i guess it depends on what i'm correct that that is an issue clear right now that that issues before us it seems to me want to argue about the cases that the judge sided or if you want to argue about the application the graham factors without a particular case as we allowed in the newman case well i think in this case we can apply just to grant factors because the district court did not find that this was an obvious case in my appreciation of the law is you can only rely upon the graham factors if in fact it is an obvious case and she did not specifically say it was not an obvious case but she did say that the grand factors were not enough and that this clearly establish right had to be more clearly and out of counsel you where is this court ever said that clearly established law sufficient to put a law enforcement officer on notice  violation of constitutional rights can come only from the th circuit but we never said that i don't believe so notion that we ever said that it could come from so i've seen cases that talk about the sort of persuasive consensus of the court of appeals if you are seen that we have identified what the how many other circuits sister circuits would required for a persuasive consensus i don't know the answer that no there was some discussion a case i believe recently appear where they're not the case had to be one it was defined by the supreme court is opposed by a circuit court but there certainly in numerable cases and this circuit that relies upon prior decisions in this circuit i think hanks is in applicable because it is completely set aside different set of circumstances that in this case and in addition to that i believe that in that case it's absolutely positively clear that mr hanks did not do anything in terms of resisting his being detained and arrested i believe my recollection of the facts is that at all times his hands what continually exposed to the police officers view that his hands never left the view and in fact at the time he was half speared by a police officer i believe he was against the car his hands were behind  head the police officer said nailed down he went to kneel down took some kind of a lateral step to the left and a police officer ran behind him and gave him a half spin dropped into the ground i don't mean to interrupt counsel but before we get further down the road on hanks to member when hanks was filed when the opinion was published i don't so february th two thousand and seventeen do you remember the ins the data the incident in this case again we have someone who did not engage in any resistance whatsoever or disobey any commands with newman was a passenger in a car that got stopped at a traffic stop they were go someone sitting in the back seat for now standing attachment they were told to stay in the car they got out of the car this is cain they brought mr newman to the back of the car he agreed to a pat down search then there is some dispute as to whether or not he made an off color joke to the police officer or whether or not he actually grabbed the police officers hand and then in response to that the police officer approached him with a baton struck him ten times in his on and three times on his thigh with the nine seconds mr newman said he was given no commands because he did not fall to the ground another police officer walked up behind him taste him tase him again when he fell to the ground and tasty while he was on the ground now this gentleman mr joseph was already on the ground in the fetal position and he had verbal inform the opposite he had no weapon isn't that correct he was in the fetal position lying on the ground even if he if there is a fact issue on whether he was flailing  at some point while they were trying to carry him out of the area in question will say that the district couper looking at the video interpret in this with the  plaintiff's opinion did determine at one point in time that he was allegedly in the field position with his hands over his face however in the same opinion the same district court looking at the same video said and i quote at other times he appears to be struggling against the offices but at no point going to be seen striking or attempting to strike an officer also the district court judge did not address at all three lane witnesses who witnessed this it said that mr joseph was actively resisting refused to obey the commands and continued to struggle until he was handcuffed and sha now i believe that the court is allowed to review the sufficiency of that and determine whether or not that later colby carson says we are not allowed to review the sufficiency of the evidence and then we have no jurisdiction to review the sufficiency of the summary judgment evidence in on qualified immunity up to maybe minutes of say something else and judge i understand that i misspoke but i do believe th this is this is a complicated issue in light of the supreme court statements in scott the harris you know because we have the video too and we can watch it and we're allowed if the video shows something undisputedly where or if the we are allowed to consider that aren't we i believe so yes ma'am so what do we do what what say you if the video shows that he's lying in the fetal position in there repeatedly kicking him i would like you to say doesn't show that but i mean i believe that in all candor to the because the district court's already said well on the one hand on the other hand and if we find there's a fact issue then we get back to our jurisdiction quandary well i understand that and you help us i'd love to judge i just think that you know in light of the law at that time you can't get past that that was not clearly established right that can be undone if it's never been  here of exactly what the right is now on friday we were asked to look at the williams case i've looked at the williams case i think the williams case favors opposition i think there are many similarities between this case and the williams case that did not put us on notice as to what is clearly established right was and i don't think that based upon the facts as found by the trial p pratt i found pratt to be closer to this case than the cases relied upon by the district judge ok now i'm no pride goes a little bit further because there's more resistance but up until the point that there's more resistance once he's on the ground i mean this same sad of facts of very parallel the judge says we're supposed to use measured in ascending force argument is that we used measure in an ascending force we gave verbal commands no good went over the counter we want over the counter with him and engaging and at the point he's over the counter we have  an employee that's trapped behind the counter between him and a police officer ok and the struggle ensued until we're able to subdue it and i think that the police officers rest goes on away from there but she's on the counter and can't get out because there's no way to get out because of what's going on and i think that you know there is officers jumped over to be in that thing where they didn't standing over there by herself and not one of the officers just grabs her and pulls her over the counter on the other side i'm not so sure that that could happen physically because of the way the counter is with cigarettes or whatever on top i think she was pretty well there for the duration until till it was concluded that there's no other questions thank you counsel thank you very much to thirty of your brief to the argument between six to thirty the brief is here's the clearly established law they should have put everybody on fair notice that what happened here was that was excessive force under the th amendment i don't see the words obvious case can show them to me i don't know that i  can't i don't know they used the word obvious case but we do argue the graham factors in detail in order to affirm would we have to say that the clearly established law that put these officers on unfair notice that they were all but the most flagrant i don't know the answer to your wife can you think of a supreme court case that would put him on fair notice no not not a supreme court case i don't think the problem is there's not a lot of cases that have developed where you have a finding that an individual with  passive resistor who engage in violence committed no crime and died as a result of an incident with the police but can you give me one i don't believe that there are there are factually analogous cases in fact i'm sorry you just gave me the factual for that's clearly established these officers should have known that they would be personally liable for money damages for the force that they used against so i think that there are several th circuit cases i think the best one would be newman v quadri a pronouncing that  beaten and the officers and gauged in overwhelming force he would pull them before we get to the force though he gets out of the car he raises his hand his palms are open he's talking to mario his passenger in the car chill out chill out everything's cool hands out and put his hands of the roof on the roof of the car there are you telling us that we're supposed to look at camera nine and determine that that's effectively what the what the gentleman did in this case yes the reason is because the district court found the video corroborates this that mr joseph surrendered into the fetal position as soon as you want to over the counter but i thought you just told me that if scott versus here is i can watch the video i mean the supreme court told us this they were factual findings in that case about the car chase they were directly inconsistent with the video and supreme court said look at the video i think that i think that what the supreme court said and it's got the here is that it doesn't have to accept affidavits that directly contradict with video evidence so here the district court didn't but there's also factual findings from the district court on summary judgment this is to judge question earlier their factual findings and against in the favor of the non movement just like in this case and the supreme court said look at the video are you disagreeing with that her petition of the court's opinion to some extent to which is the district court in this case was armed with a evidence and so she was able to look at all of that evidence all the other day which depositions documents of the record and compare those to the video and make findings based on the totality of the ovens what she sees in the video and so she was saying that to some extent we don't have to credit with the officers claim happened behind the counter because the video shows of things that are different and here in this case you have an individual she found surrendered in the fetal position so he saw the video is it your position that he's in the fetal position and he is said i don't have a weapon what else has these what is he said specifically he says you know my name is kendall joseph i don't have a weapon call the real police they're trying to kill me he calls for his mother you know he clear at that point that he's having some breakdown or something isn't it clearly right in front of the officers at that point call the police my name is so and so i have no weapon drops to the floor in the fetal position who is that's what happens on the video right well it's happens on what's on the video evidence part of what the officers admit happened i mean you have was there a breakdown in newman no there was no and so he's lying there and they're trying to get him out from under the cabinet i guess i don't know what they're trying to do but they're kicking him and tasing him and all kinds of other things getting into the town and one of the st thing she's find is that you have officer martin who immediately goes hands on instead of engaging  talking to him where he surrendered and gets on top of them and this is a three hundred pound police officer and there's multiple options on top of them and he has his hands pinned beneath him while the officers are on top of him and officer martin discharged his keys are in his back for eleven seconds so you know it's difficult to explain that for the police officer as to why that would be reasonable under the circumstances if your positions are that the video actually shows contrary that there that there is not measured escalating force that instead that there's immediate jumping on the person and using a lot of force right away overwhelming force which is so that's your position  it's not just what the video shows obviously it's corroborated by a lot of the other evidence and one of the arguments we made to the district court and we made to this court is that there are periods of time on the video when the officers are so many officers in the vicinity you can't see what's transpiring and so we're left to accept that the officers limited their force to what you can see on video which we do not believe to be the case and i think the jury could infer that there was actually more force used in what they've admitted based on the circumstances here  because of the injuries to mr joseph and the fact that he died and the way that they treated him after they had him the handcuffs and does not have anything to do with the case do we look at what happened in the police car at all i mean i think that the i think that what's germane about that is the bad faith of the officers in the way that they treated him that he was face down handcuffed folded into the car and then basically drowned in the face down in a pool of his own blood so do we consider that is part of this case or is that not part of the case that he's lying in his blood on face down well i think that the court lacks jurisdiction to hear that part of the case because the district court ruled against us and then we would obviously like to raise that  it we can't consider any of that anything that happened after he's in the car or go gets after he's out of the behind the counter i'm not sure how would be relevant to the excessive force claim that the court found that we were allowed to to pursue in this case in terms of what happened behind the counter up until the point he's in handcuffs and shackles because she specifically ruled against us on our excessive force claim about the way that he was restrained and put into the police so in that part just sits until the end of the case which time you may or may not take it up is that right right i mean you know depending on the outcomes we would have to make a decision based on how the court rules and what else happens so you know one of the things is just like in the case of the court just ruled it was and cold versus carson excuse me once you distill the specs this case becomes a very obvious case you have an individual who's not violent he's not a threat he hasn't done any violence he's no immediate threat to anyone in the vicinity they like to point out that there's a clerk you know who somewhat down the counter nearby but he doesn't pose a threat he doesn't threaten her with violence he doesn't do anything to justify the amount of force that the officers us debris field case helpful to you or not i mean to some extent look none of the clearly established law prong of this analysis does not require factual dentity between the cases that's decided and the case that that   at issue because otherwise we would never be able to prove a cost to show violation that while it clearly established so then what is the rule that you're asking us to adopt i think that the whole point of this is that we have to adopt rules that put police officers on a clear fair notice bright line so that they know do not do this thing so for example you could imagine i'm not saying it is the th minute rule but you could imagine a th minute will no hog tying i don't know what the state of law is on what meat maybe that is or maybe it's not but you can imagine that that would be a an escalating degree of reasonable force is that a line that is just in your brief or is that do you get that from somewhere that that comes from this line of cases in the district courts analysis or which line of cases sorry there's there's two separate questions i'm being asked here one is  here is that officers have to use measured responses so when an individual surrenders in the fetal position they must measure their use of force to respond to that circumstance this is not a case where you have a split nd decision or an individual has a weapon and you know he has seconds or seconds to decide what to do because someone's life is in danger they have the opportunity to take a deep breath before they engage mr joseph and try to talk to him try just asking counsel for the wall what is the th amendment will they have to use measured responses and they can only escalate their use of force in proportion and calibrated to ask a leading resistance which didn't happen here if you don't know exist already at the time of this case absolutely and that's where we were is that reasonably and use in the escalating degree of force in the way you apprehend people who are fleeing from you and jumping over counters in front of clerks in a store yes thank you office problem and i have no problem saying that that is a huge problem and the officers are confronted by a split nd decision they must react and if they get it wrong they shouldn't be liable for money damages and that is the quintessential qualified immunity takes that's not here there is no evidence however that he tried to grab the police officers weapon tried to strike the officers and the district court made it clear factual findings that taking in a light most favorable plaintiff that is not what occurred in this case  says for substantial portions of the video he's not resisting while they're applying all of this force but there are moments and that creates a fact question about whether or not his resistance was actually was distance to being handcuffed or just responses to overwhelming force that they initiated if you accept the fact that they knew he was an emotionally disturbed person and that they're trained that if they use violence against emotionally disturbed persons it lead to more violence then these officers ought to have been aware that they went  on that this could escalate this situation and even make it more dangerous for themselves and this individual so the fact that he did resist i mean no human being in the world being tasered in the in the back for eleven seconds while you're being pinned underneath  officers and you can't move your arms isn't going to respond in some form or fashion he didn't try to strike the officers which i think is really important people are going to move and their legs are going to move their arms are going to move it's one of the  circuits laws and terminate what is clearly established law about how you're not how you're supposed to do escalating force and not immediately take down somebody who's not surrendering their hands per s there's a yes if there's a consensus that police officers are supposed to act in certain ways then yes you know just because there's never been a factually identical case in this circuit or in any others doesn't preclude denial of qualified immunity where it's i think that it depends on what you're talking about what rules you're dealing with it's going to be very hyper specific because you know certain things are just obvious like you shouldn't tell in a rusty just because he doesn't put his hand cuffed behind his back i mean that seems fairly straightforward no law enforcement in the world thinks you can do that and then avoid liability for damage but there's a very big distinction that you're aligning in that answer which is that there the court has said the supreme court has said there are obvious cases on the one hand and then there are the fair notice cases on the other right so there are obvious cases under graham there's obvious cases under garner but then there's this other thing which is that sometimes a series of court decisions will put you on fair notice so we can't just say you're unfair notice what's an obvious case these are two separate categories of how you find clearly establish would actually argue the rd category which is where you can pull principles from these cases that officers violate that are lines that can't be crossed that you can ask about one of those principles one of the principles in our line of cases is we distinguish between active resistance and passive resistance or passive resistance and non passive resistance do we have any cases that you've read because i haven't found any where we would treat it as passive resistance where someone flees from the police officers not to know i don't ok i think that if someone i think that if someone's an active flight they are not a passive visitor but mr joseph surrendering into the purposes if we cases where somebody is not considered to be actively resisting even if they're not x acquiescing to a command and after they've been after a flight which you're not disagreeing with their cases if we were to have those cases are you just not aware of them is that correct ok thank you so that you know i would just there's no other questions  counsel can you address right away why this isn't an obvious case senator graham and why graham itself doesn't provide the clearly established law judge i think the easiest way for me to addressed it would be to start with the whole discussion that's going on before this panel when we're talking about what constitutes active or passive resistance and it was it's really easy to look at certain facts that were found and ignore certain others that were found by the district court the district court unequivocally found that mr joseph was acting strangely in front of gretna middle school sufficient enough that the assistant vice principal saw him what was scared and contacted to school resource officers who then just went up to him to try to talk to him and he ran before they could even talk to him which gave rise to a radio call of a suspect fully officer martin an officer of the duff responding to that call as found by the district  got out of their police vehicle gave mr joseph a command to stop he looked at them and then kept running and entered the store so you have two instances found by the district court of flight by mr joseph from uniformed police officers before anything happened inside of the store then when officer martin enters inside of the store he gives commands for mr joseph to get on the ground mr joseph then jumps behind the counter and at that minute officer martin does have a decision does he go behind the counter immediately like he did or does he allow mr joseph to be behind the counter alone with the clerk while he stands on the other side of the county office of martin chose to physically engage mr joseph after mr joseph had ignored several verbal commands from multiple police officers before and it was during that physical encounter when even the clerk said as fell by the district court that officer morton was telling him put your hands behind your back and he wasn't and he was flailing his legs and struggling against officer martin it was thirty seconds after that encounter started when officer martin used that ascending force and tried to deploy his taser the taser did not have its intended effect on mr jo issue on any of this counts these are all the facts that the district court herself found that's the facts that we are relying upon to say why this is not an obvious case why this case requires some better president to be cited by the point at which they have failed to do to say what the clearly established law was the law is existing president has to place a constitutional question beyond debate qualified immunity shields police officers unless they are knowingly incompetent or knowingly violate the law and as was pointed out during the prior discussion the cases the primary cases relied upon by the district court when the district court performed its own analysis to try to say with a clearly established law was darden she relied upon darden hanks and newman  resisting arrest had followed most of the commands it was given to him again it hangs as been discussed again after this case but hanks doesn't say it's plowing any new ground in fact it relies x lot on to  discourse specifically said that but the factual distinctions in the findings in hanks were that enhanced the plaintiff had largely complied with the commands that were given in this case the district court found before we even get in the store he had already resisted or verbal commands of two officers to stop and continue to fully at that point he's on the ground know when we're doing what the command when it gets on the ground there's still a decision to be made at that point and that was discussed again we talked about you asked what the test was and i'm going to come back to what you discussed and you mentioned scott versus harris and that's exactly correct you can take the district court's interpretation of the video what the supreme court has said you're free to apply your own interpretation of the video but the fact remains even the district court and how we can say it's not an obvious case found at some points is not struggling on the video and at some points he is struggling on the video so that can't be an obvious case under the law so it's your anywhere i mean he wasn't doing anything a struggle was if anything just an act they said wasn't actually strong i mean interestingly the only actual description we have of what his resistance was came from the three disinterested witnesses at the district court hardly mentioned where one of them valerie mendez said it blew my mind it took this many police officers this long to gain control of this subject like that was he was out of control at that point were resisting and we have to at some really good music on that and then the store owner keith hunter said he destroyed the counter of the store through his resistance he  does exactly what he testified to and we believe that the district judge not mentioning at all this court can consider that under applicable summary judgment law in addition to reviewing the video or else we have to find a fact issue and we have to and the response i would give to the fact issue is we're relying upon the facts as found by the district court and the fact that she classifies struggling at one point and not struggling at another point proves it's not an obvious case to where these police officers know what we're doing violates clearly established law right now to me that proves it's not an obvious case where graham is not sufficient and we can't look at the end in the seven circuits i under these facts it was completely clearly established i think that there were factual distinctions in the cases that already i can't say that i have read everything but i think answered go taking all of that in totality shows that this is not an obvious case grams not enough in the cases a district court relied upon or factually distinguishable in two of them were rendered after the incident in this case took points which should prove it wasn't clearly established we were trying to rely on cases that are rendered after this incident  what is it one way or the other depends on what the case says if it says we already said this somewhere else and then you look at the somewhere else and see it did that did it really say that i break ok thank