it's made place in court because i'm justin smith i represent trooper in the heart this is a case about whether an officer may take to the ground a suspected drunk driver who is actively resisting arrest and has already ignored repeated commands from that officer the district court erred because it concluded that credibility determinations were necessary to resolve miss murphy's claim in this case credibility determinations are not necessary because the court can resolve this claim in trooper engelhard favor based on the facts alleged by miss murphy miss murphy argued on some at summary judgment in an appeal that your brain the heart shoved her to the ground titled to qualified immunity based on that allegation because of the undisputed facts they occurred before trooper engle heart stopped miss murphy because she was failing to drive within her lane and when he approached her car he observed that she her eyes were bloodshot and glassy so he instructed her to wait in the patrol car while he process the stop miss murphy left the car without permission seven times mr murphy hearts command to return to the car twice she disobeyed his command to turn around and sheep actively and physically resisted guards attempt to return  to the vehicle to turn around and place her arms behind her back because she was actively resisting arrest triggering the heart was justified in taking her to the ground and in objective lee reasonable officer in the same situation would have believed that was appropriate for them why it was not clearly established at the time that this that this type of take and would violate miss miss murphy's fourth amendment right where did the takedown occurred how this happened i mean in terms of where the highway was this happened and i'm busy stretch of highway even though it was late at night it happened near the highway did it happen and you know off at the grass i mean how close was it to the highway stuff it was on the passenger side of the vehicle on the shoulder of a state highway outside kansas city about ten o'clock on a friday night so there's no danger that by doing the takedown she might end up in the middle of all of a busy one lane oncoming i way you know i'm coming cars or anything like that yes by the time of the takedown that's correct prior to the takedown there was a struggle that occurred closer to the highway when mr murphy was still actively resisting this court has held in that case that the that the force may be use to effectuate interests in that case a takedown was considered appropriate when the person wins passively resisting and had it only ignored two verbal commands from the officer here we have active resistance and  arrest and here we have a suspected drunk driver who although not in the vehicle is is attempting to return to her vehicle at the time it is ignoring the verbal commands and then begins to actively re the reasonableness factors that the supreme court has set forth show that the heart's actions were reasonable because you have active resistance at the time and there was also the attempt by by miss mary to return to her car was a waffle the tension command that was resist then we come back to be the forceful arrest or if i don't understand wh immunity thank you you that the spate i'm sorry the defendant argued and in this record as well as in his opening brief that well it was a controlled movement to the to the ground he put her to the ground we made our our brief asked the states as well she she was thrown to the ground either by the trooper that's is where the district court has a problem the uta level of the use of force whether it was excessive or not that's the cla have a lot of facts here that support what the officer day you have this happening on a busy stretch of highway you have at least some of the activity taking place relatively close to where cars are passing by you have  resistance seven commands that are there and in clearly she's not going to follow what the officer sat as so why wasn't he in terms of his own safety and her safety quite frankly justified and bring her to the ground rather than having the possibility of this you know going into the the busy highway or him being hurt or whatever the case may be or your honor i saw the video a thousand times i'm sure you've seen it as well it shows that she wasn't wanting to be arrested or doesn't she didn't want to be stopped but what we done to stop her from doing that yeah then it becomes a question of well what did he do and how much force to be used to do it that's the part that as an issue here took me through or down to stop to prevent any further altercation taking while you have not only under lawful detention but it happening on a busy highway i understand was late at night at nine cars passed during that period when that bullet while we were on you know i'm video so there clearly was a danger to both the officer and to her now and  he said he took he put her down he put her over there on the ground there and he did i think what he i mean i think almost probably would have done something to stop her from from behaving that way so it's been a come down to did the arresting officer was kind of played to the intended agreed your honor but he's telling one way one version of this which he puts her on the ground and controlled the that's the case and we focus on the level of force he just that's what that's what that's what the supreme court tells the do well but that's not the level of a left you've got real evidence of intent to har had a claim for battery which my opponent correctly pointed out you have to show some kind of malicious intent and i just didn't do it wasn't there but but that doesn't get us away from where we were which is what what i think the district court was focusing on  version of the party stories which is you know the kelsey vs urns case is coming up for rears and you know that that that claim it was walking away from the from used throwing them to the ground is where we had the excessive use of force and i think a jury can make that decision whether it was excessive i don't think it's a matter of of law