these days one never knows but there's comedy right thing and he ended up shot dead in front of his children it is all on video and it couldn't be clearer to the extent that there is any ambiguity the district court erroneous lee construed the facts in the favor of sergeant wo specifically the district court found among other things that what drove did not release the taser in order to draw her service weapon and shoot lawrence that lawrence represented a threat to the officers that lawrence  and then we'll get to that what testimony disputes the officer's testimony that he grabbed the taser for example so tell me what that from testimony that was depositions that were given there other than the video which shows that that is not what happened there is no direct testimony that speaks to that your honor all right so so but for the video you would lose i mean i'm not going to take the video away from you which is but for the video you would not have a case no your honor i think the video speaks pretty clearly for well what about what about the magistrate's are in are we to reach the object conclusion by saying that there are genuine issues of material fact throughout y f beginning earlier on in the the incident so there are there are material facts in dispute throughout that process but looking specifically at the moment where officer drew her weapon in order to shoot mr lawrence that that in that case the magistrate judge was looking at the video and considering any considering any ambiguities that may have existed in the video in favor of   the when the facts here are viewed in the light most favorable to cantu the law is clear the shooting an unarmed not from me not a plea individual is a clearly established violation of the th amendment is a clearly established right to be free from being shot dead when you're not a threat to officers not fleeing and an armed you know course it garners clearly distin air there are other cases your best case the supreme court car of the th circuit because it has to be clearly established what's your best case for this set atlanta which was a individual who was struggling with officers as they were trying to arrest him and he was he had previously been officers had responded to that scene because he it's different in the sense that the court said look there argument was it would reduce th or the threat of serious harm but in fact that a reasonable officer would have thought that i've got to shoot this person in order to eliminate or reduce the risk of serious physical harm to others because it would in fact increase that's w when another officer had mr lawrence pinned up bear hugged and pinned up against a vehicle when only the bottom part of like the bottom half of one of his arms was free sergeant will had hold on the trigger and handle side of the taser and the rd officer on the scene had a hold of mr lawrence's free arm whether in that situation sergeant woodrow would have thought that it was reasonable or reasonable officer would have thought that it was appropriate to draw a weapon and shoot mr lawrence without warning which a reasonable officer in that situation would have recognized that mr lawrence was not a threat to the officers that he was not attempting to escape and at the very least would have provided him with a warning before use he was attempting not to be  difference speaking they could be similar depending on the situation but looking at this sipek situation he was not fleeing in at the time when sergeant woodrow drew her weapon in order to was trying to get away from the officer so he could know your honor he was although he did all he was struggling he wasn't attempting to flee the scene he was even when he did temporarily evade officers and you can  so it's not all that essential in this case but also roads took him or tried to apprehend him and put him in handcuffs while he was sitting on his car talking and harassing i guess that's not probable cause to arrest somebody so but you haven't you haven't in any way raised the question about that the attempt to take him into custody the only question here is excessive force right yes  confrontational that he possessed the taser that he was a threat to the officer safety and that he was a attempting to escape at the moment that she drew her weapon in order to shoot him and so if these facts were construed in the light most favorable to cantu or as clearly as as generally can be clearly seen from the video the officer would not be entitled to qualified immunity here he said that at least implied that he had the authority not to be to time he had the right not to be  that he didn't have a driver's license or he did not to sergeant woodruff and actually she had probable cause to believe because she asked for it he said he didn't have to have a license and handed her the affidavit that he had designed yes yes your honor that's what she had probable cause to arrest him for driving without a license or to prevent him from leaving which would involve driving without a license which was a crime right right that is a crime and if he didn't have a license and was attempting to drive and she would have probable cause to arrest him however the whether she had probable cause to arrest him does not in that situation does not mean that she had probable cause to believe that he was a threat and believe that it would be appropriate for her to use deadly force in that situation my time is expired let me ask you something i read somewhere that changed the setting of the mode of the stun gun is there anything in this record to make it less incapacitating is there anything in this record about why she did that your hon was also as a matter proximity if you use a projectile when someone is far away from you but when you're right up next to them you want to use the probes on the end of the weapon this is a right so depending on how you look license and whether or not a taser present it's a serious enough threat to justify the use of deadly force including matters of speculation such as whether he had the actual ability or non deadly situation and thereby you cannot use deadly force against a taser is too broad a concept to put any officer own notice about what he was going to do was unlawful here they continue in that there was clearly established law that in those circumstances she should have been on the road is that the use of that force of the unlawful and as she just was not armed and he did not attempt to take the officer weapon and in fact when he was shot he was backing away from the it threatened someone with a gun and the person who reported the threat took the officers to the residence or they found him at the residence and responded that the suspect watch those three officers one was not involved except pull the dog back a couple of times what she actually ended up owning the taser she got at the end well she held his arm  and leave it to anyone who's reviewing it to judge whether or not who had the taser but well there's a genuine issue fact perhaps on that right now i don't i don't i cannot see that at that point in time they've anyone wants to taser who is which was indisputably in the exclusive possession sergeant woodruff was grabbed by that point there were two people yes for a moment but eventually drop you know and go to indication is anything is who dropped that taser and when you drop it in the point of that he never had it that he never grabbed it and i do not believe that is a reasonable observations observation from the evidence and the evidence in this case is the big deal and what she said and then there is the the video itself but the point eleven dollars thing i think is important here is that in the context of qualified suspect grabs that taser but did we did we did we have a serious underlying offense here the underlying offense was not the cause of the shooting down or lying  or where she was for which he was to be arrested and that he spent twelve minutes off of woodrow spent twelve minutes just on the video just on the part that we do have a video record of well the question is was it a serious underlying offense yes or no the underlying offense was self defense against a bit of a serious injury of a wet that's not the count all that's that's not been the  during this arrest procedure but he wasn't he wasn't physical at all i mean he was resisting but he wasn't he wasn't hitting anybody or punching anybody or i mean he was just trying to and i'm not justifying that but i think there's an there may be a difference between trying to resist getting arrested right defensively defensively maybe and often simply striking out and physically trying to prevent the officers by some kind of force offense a force on the part of the person being the last i mean you would agree you would agree he was not engaging moment in time the crucial moment in time to assess the reason was that the use of force is the moment it's applied not whether or not the man had a driver's license or not whether she spent twelve minutes trying to argue with attempted to handcuff you but actually if so you agreed and i think you just said you agree that it there's a difference between not wanting to be arrested and trying to avoid arrested and and physically striking out and so if there is a material issue of fact then over whether he was just trying to present himself to prevent himself from being tasered to drive possession of the taser you keep as you keep saying he dropped the taser yes they didn't shoot him because he dropped the tanks or he dropped it when he was shot when the moment he grabbed that you said if she's just for purposes of my understanding her argument i understand your position is he had the taser we know that because he's the one who dropped it that's your position right far as i understand but but let's assume the facts are different ok let's assume that all of the video shows in a light most favorable to him is that he's trying to prevent himself from being taste as opposed to that he is he has control of the taser in that case you would agree there is no material issue of fact that survives summary judgment that's the case here because what agree to is that throughout the time that he was resisting arrest and while she was tasered she kept on she kept on she kept voiding him trying to block it and teresa and then he would avoided blocking it again and she  blocking it was not doing it ok i understand but you're arguing with the premise of my question ok i'm asking you to assume different facts i understand your position is that's not what happened and i may agree with you that that's not what happened but i'm asking you to assume the fact that what happened was in the light most favorable to him the video could be viewed as him doing nothing more than trying to prevent her from tasing him would you then agree with me that it would survive summary judgment wait and hope for the best or she could eliminate the threat in the only way she had available why is there a threat if all he's doing is trying to prevent her from shooting him i thought you told us earlier that the only moment when she's authorized to use force is when he's using force against her when just when he presents a threat to her and a fall he's doing is trying to prevent himself from being taken just how does he present a force  her in this situation putting myself or asking this court her themselves in the shoes of her in that situation given that there's no clearly established law of any case that he spotted hog case then you're going to have to go with some obvious clarity in those kind of cases you have to those those cases must involve facts that are so outrageous as to go far beyond hazy border between excess of an acceptable and its objective standard then jack do you know standard that a reasonable officer would say i have to use deadly force to protect myself or somebody else because there's a real danger and where is it here that's the question and you go where is it here when she believed that she had subjective the ok based on the same factors for example where an objective factor is whether or not this person is older stronger their sobriety their complicity those are all objective factors and their strengths and also in those cases you have the objective factor of someone who was held and determined in not cooperating and would never cooperate under any circumstances where you're saying that but again that's that's an inference you're drawing and it's not an inference in favor of the plaintiff and apparently that's what the district court inferred as well well so i think it's it and the the the what the strengths of this man who fall an officer who was a lot larger could hardly stand it well let me let me let me ask you about measure say that there's no such thing as a substantive circumstantial evidence case in order to provide probable cause is one thing i found was erroneous and in other words to pull the rug out from under the entire and been the only officer on the same and mr laurenson said i don't have a driver's license i don't need one under whatever i will get in this car and leave and she told him not to and he starts to get  the car and he's clearly stronger and bigger than her younger or whatever and she shoots him to keep him from getting in the car and leaving that clearly established  is a different case because they had the right to arrest him and when they tried to arrest him he resisted with physical force and it escalated from a mere failure to have a driver's