a group of cases that i'm sure you're familiar with i feel like they callously cases sort of become the fault line for us where an unity starts in this circuit here i believe that this case falls within the individuals who are not suspected of committing serious crimes are not clean are not actively resisting and don't pose a threat but before we talk about the legal standard there's a critical fact issues that have to be addressed with respect to the summary judgment standard which is why this case falls within the group of brown at all one of those critical issues is movie theater that is not supported by the record here the officer believed he was responding solely to a welfare check all of his contemporaneous records the police reports the statements his subsequent use of force reporter all reflect that he was responding to a welfare check and make no reference whatsoever involvement of mr coe was with respect to the the incident at the theater it's nd video your honor appen well after the fact and well after mr smith had his interaction with mr coe worse and when will we have to pay attention to what's it spite the fact that someone may have made that statement after the fact mr officer smith nowhere references the movie theater incident what was it she was on the ice with that would be your same the same answer that you would make  making process that's just evidence that there's a computer there as far as you're concerned correct your honor you know we wouldn't expect the police officers to be reading and driving at the same time anymore than they would want us to be reading text messages and driving at the same time and in the video where you see the computer certainly ops or smith does not spend any time interacting with that computer we see him exit the squat and you know wh and if an officer was looking to justify their use of force they absolutely would point out that this individual was a specific in a fight because they talked about it repeatedly in defense of this litigation your honor so they would certainly want  note on their use of force report and on there are some finance that the reason they're using force in part is because this individual was potentially violent and that's truly did not happen your honor and our common sense tells us that but one of the other issues where i feel like the jury was usurped on this is the question of whether or not mr coerced attempted to flee he did not he never attempts to leave d the area he stayed there the entire time and with respect to a threat there is no evidence that mr coerced was posing a threat to anyone and any when in time all of this started because you know frankly  this officer smith became frustrated and didn't use his words everything good mr o kooris an opportunity to comply you know with nothing wrong with mr couper's asking you know why he wants to see his driver's license and that officer smith rather than just yanking out of his hands can say you know mr coerced i want to look at your identification to help get you home to help get you to a safe place and mr coerce if you don't comply with that i'm detain it or maybe i'm going to have to arrest you and explain there is no reason there is nothing that is so rapid and so involving that officer smith couldn't have taken five to ten seconds to convey that and get mr coerced the opportunity to comply with those verbal commands instead he immediately went hands on time with someone who at that point in time he only knew needed help he had no reason to read he had committed a crime and opportunity to check a box if the taser was ineffective or wasn't working he could not check that box and his contemporaneous record and when you look at video you see mr colbert is reacting to the up he's turning over what mr smith is not doing is giving a man who's been slammed and tase a reasonable period of time to move his body so he can be controlled these happen in very quick succession and it reminds me quite a bit of the jackson the staircase with respect to the nd tasing where is this very quick successive dazing really each time for mr coworkers and if you watch officer smith he's not in danger he's taking calls he's talking he's just frustrated and he wants to he's continuing to take his mr coble words in hopes that mr couper is going to move very quickly to do exactly what he wants him to do but it's not necessary is continuing to impact this man who's already been intoxicated and slammed and a reasonable officer would look at mr coe or see he's clearly not proposing a threat see if you know he's just coerce who need some help that there might be a nd person who is in need of help but at no point in time did officer smith ever encounter anything that he believed was dangerous if he thought those individuals were dangerous right or common sense tells us he would  squad to look for another dangerous individual this was a call for help and he was there to help these gentlemen and so moved that's a fact question and with respect to be in at night i know i think it's the murphy case that mr flynt recently it was murphy that he cited previously in a twenty day letter this is not a situation where you're on the side of a highway and there are cars whizzing by and you have to be concerned that maybe even an intoxicated person or walk into traffic and i know that's been raised that's not the case here at all it's a complicated street we don't see in another single car go by it's a sleepy suburb and you have a engaging in that is so active and potentially violent that mr course needs to be slammed to the ground while in handcuffs it's a route to his act and i would say it's an irrelevant fact even if it's not disputed you know here  you know we have a plaintiff who has who has any shia and as a result of this events and that's not something that can be disputed based upon the state of the record and so we don't have mr coerced to say what he was doing with his hands but we have the video and we can look at it and say ok the officers were not threatened at that moment in time we know that because officer overextend in his words he was giggling he's get playing on this or coach or is in the position he got himself into they were they needed to get him out of the squad but there were multiple offers there who could have done it in a manner that did not result in this or coerce the a slap to the ground and the way that it is that do i understand your position that it doesn't matter whether he hit his head or whether he was tossed in a way that is head was st story shoulder was st it is that your position at absolutely right or the science says that you can suffer a t v eyes from a  strong blow to the body and anyone who's familiar with hockey or other context forwards would know about as well and so here you have to control and bring into the ground because slamming his body is just as dangerous as hitting his head so whether or not he hit his head is irrelevant what matters is that he could have been taking out of the squad in a reasonable manner wasn't and a very large man slammed into the ground while he was handcuffed and couldn't braces off and at this point  francis to jackson the stare and it's kind of unfair because i had been up to new you to review over these videos in great detail on numerous occasions and if you look at there's a couple of differences in the videos and did you but what's what struck me is that we have a person who may have been so intoxicated he was totally incapable of responding to any direction and if you look at it he was slow he was very intoxicated the one question i have got you know factually is that the video was not very helpful as to what happened when  operator smith reached for the bill fall because they got so close together that at that point all you're seeing is things flying in all directions but it media the obvious are spits go stop fighting with me stop fighting with me and so one could infer from that that there are there's some physical altercation that takes place at the initiation or maybe the response  active like that and we also can see at the end mr colbert is clutching his identification and so we know at both t v has one free hand and and we also know that officer smith is behind him so  we might have some sort of passive resistance where he's not turning this identification over but there's nothing on the video to suggest that he's engaging in any sort of violent conduct towards officers and i would resistance is not going to be successful and with regard to whether there is any physical altercation between them you can see it on the videotape and it's consistent with officer smith testimony that he was taking at officers also there was other physical contact initially as i think joe duerson pointed out there was this confrontation near the car when he's trying to get up against the squad are you saying don't fight with me well that was preceded by an effort to grab him by the jacket when he pulled away also another out effort to grab his arm which he walked away also all efforts to try to identify him which he had every right to do repeated we put your hands behind your back that resisting trying to get them to comply over and over and over and it's not successful because you won't do it you want to argue with the officer you want to resist and as a result of efforts by mister mr coworkers to hold his arms underneath them and the officer undisputedly tries to pull the arm of them under him repeatedly without success because he's how much tie between that all the way and the takedown i don't know exactly the video reflected i would estimate thirty to forty five seconds thirty seconds maybe i don't if i know there was enough time to get repeated commands and also to follow up with when you grab the jacket fall trying to grab the r and then to try to get him up against a squad and then for him to walk away so i mean  force and that's absolutely correct because the conduct here certainly is egregious and i think far worse reducing the conduct in rugeley murphy helps the i understand that but but we do and i mean she was not a suspect in the crime she was not being repeated commands there was no prolonged hands on struggle she just walked away and he took her down and fractured her collarbone so in th there's no intoxication there's no repeated pulling away there's no refusing to doesn't come in and there's no taking in you know at some point in time the conduct here transitioned from a welfare check to criminal activity on the part of mr holder's in the court and even so if you look at that created there is which those court has died recently and in that case you can you can see them use force against someone regardless of any that is a that's a factor like look at brown one of the factors of brown and by the way around but just sitting in her car and when the force was utilized so what the course is that one of the factors  on one of your questions judge kelly between the time there before the additional takedown he was given almost no time to comply it happened in a matter of seconds between the time that you know you have the individual walking away which implicates fleeing but it also implicates a potential danger because of the individuals who miss callously there was concern that she might go fight with them and here we  never have mr coerced attempting to flee and we never have him attempting to go and fight with anyone a reasonable juror could watch this video conclude that when mr coerced legs move it's not kicking the officer he's being subjected to taser usage and rolling as a result of that