issues like that and in particular as i said let us know if you're having trouble with the audio for any reason i can't guarantee that will fix everything but will certainly try on a tight schedule this morning because there are some additional arguments to sachin and by one of the judges here so we likely won't be able to give anybody any extra time but we've tried to give sufficient time that all the arguments can be made in view of the fact that it's a tight schedule of oh i ask the lawyers not to repeat things that you've already said because we will more than likely hear you the st time all right we begin with cloud versus style mr roundtree might should have been on notice oh well he's turning to so he can read my lips because he can't hear my commands but as i bet you know and you can contradict me if i'm wrong as i read the records there's an exchange going on the the officer speaking mr clout speaking back and you know there's some disagreement mr clarke doesn't want to sign the ticket i get all that but there seemed to be a verbal exchange going on is that right to some extent correct ok i think i a monday he attended the class on monday and got up and went to work tuesday the day of the shooting at seven am he was annoyed because joshua arguing about whether he was speeding or not he was even more annoyed when joshua declined to sign the ticket but he did not say it's not an admission if you did if you sign the ticket he did not say i'm going to take you to jail if you don't sign the ticket he went back to his unit put down his book turned around went back to the truck told joshua to get out of the truck turn around face the truck put your hands behind your but joshua complied with those instructions when deputy look at put the handcuffs on his left hand he made a quarter turn to look at me he base some statement the deputy who could could not recall during the interview with the state police three days later question when you were applying handcuffs he could not look straight at you could answer no no one looks at me when i apply handcuffs question and your complaint was that he made a quarter turn toward correct correct that would have enabled him to read your lips that's resisting arrest is what that is how i understood your testimony accurately to say that your knowledge that josh what cloud was death would not have affected the outcome that day answered no it would not is it possible that nowhere mess on your part of his deafness could have enable to avoid the wrestling match and the shooting no d not in compliance is noncompliance deputy luger never said that joshua pulled his arm away from him he just said he turned and faced unarmed seated suspect for resisting arrest and failing to follow verbal commands was clearly excessive an objective leon reasonable so we gave the deputy there qualified immunity on the clearly established law what's what has changed i guess since that with respect to tape because here you know here we have at least what sounds like a similar circumstance so in your view is the law changed i'm sorry i act can't the the events leading up to the point where they were standing face to face did not justify the tasing this this is what happened when when joshua turned to face the officer i create distance paul my taser deploy direct hit in the chest right here probably go through two cycles that was too close to incapacitate he admitted that i missed that i get that i guess my question is what law tasing use except if there is active resistance i understand that you say this was not an act of resistance but in a case of active resistance do you agree that the lawyers that tasing is permissible yeah and in fact this at st tasing despite what you said in in remember as versus martinez i'm not sure that it really should be considered excessive force it's what went on after that said at that point and would actually tell us that many pulled out scream at that point i knew it was fixing to go bad really bad so i still have my distance they used my remote control pop lock on my look or note we're still look horrible now you are at a distance luker right how well he's done pull leads out then some kind of yell or whatever and then i see the standing there you're standing there you activate the canine release luker right harwell so now the dogs coming out i take it lugar the dog is on the ground i don't know where the dog is hard listening luger i'm still listening to make sure the dog is on the ground haro is he saying anything to you at this point are you all talking i don't know i can't tell you look or at this point he turns his right side to the vehicle looker all right i come in with my taser because i'm going to behind it you probably push him now here's the trucker does he follow you he has to because i'm not going to just stand there i'm trying to get to get control i'm trying to get him in there so i can get those arms look or drive the activate harwell activate luger activate the taser again pull the trigger it's going and we slowly start sliding to the opening of the door that i think is resorting to  overwhelming force without making some kind of effort to obtain compliance without that remind us as the sequence of events occurred at what point did mr klein reach into his truck and obtain a weapon as i said i believe that's resorting to overwhelming force without making an effort to avoid it contrary to deville versus market tell who are market tell us this is what you said market tell gauged in very little if it indigo she asian look there we martinez construing the facts in the plainest favor we found that the officers exerted force in violation of the th amendment by immediately tasing enforcing to the ground a person whose only resistance was merely failing to comply with  to put his hands behind his back and pull his arm when an officer grabbed his hand we concluded that he posed so little thread that tasing him before he was handcuffed was excessive and tasered him after he was handcuffed and subdued while lying face down that was even more so there's more that i would like to lead you from that case but my time is running out as i said before i think a jury would find that the resistance was passive and no the district court said it was active but i believe you know in cases where things are disputed like this the benefit should go to the pla taking i understand that i take less and i hope lethal force was also unnecessary as your course said this but this may be one of the cases where the exercise of force that is reasonable at one moment state police he didn't shoot him earlier because he knew officer watts was on the way and he had distance and control the video shows look are moving closer and closer as he could and as he's shouting to cloud to get on the ground rolled over toward it after he was mortally wounded crime scene photographs appear to show seven feet between clouds body and the gun if he wrote toward it he could have been going in the direction of the gun when he panicked tried to get away a reasonable police officer would never have allowed the situation to get out of hand but when it did he would have arrested clara joshua rather than kill him all he had to do was wait twelve seconds for help to arrive all right thank you questions about when the gun was introduced and so forth so i'd like to do just start off by some of those items we do know that the date was august th two thousand and seventeen we do know that how this event started was that josh a ticket and i think what's important just talking to your question whether there was any kind of communication problem because when he pulled them over he ordered them out of the vehicle and he compl and afterward him out of the vehicle he asked him he gives him the ticket he won't sign the ticket there's a discussion about that then he tells them go ahead place your hand behind your back and he  complied so you know this isn't a situation where you're talking to someone and that understanding was happening certainly to the deputy because he's giving them him verbal instructions so he does comply with that he secures the risks once he secures that left wrist then cloud turns and again starts arguing with him over the ticket indicating an understanding in an exchange of always happening that day then when he still doesn't sign the death he says give me but just to kind of go through what happens from there the taser is deployed just without it still does not comply he poses out these leads and what he determined what was it was classified as pure range at upset or that introduces a weapon into the situation cloud goes into the truck which the door's already opened and to answer your question just don't get the revolver was under the steering wheels on the steering column as he goes  cloud grabs a revolver points it at lugar fires two shots one of those shots hit stepney luker in the chest i thank god he had a vest on that day or he wouldn't be with us but the poet penetrated the best he was bleeding he was injured deputy lugar to his credit is now able to get his hands on the gun which cloud has already shot him he's he's got the gun there struggling for the weapon eventually able to get that weapon and is able to get it down and pick it behind him doesn't shoot cloud doesn't doesn't do any additional force base protecting himself what we now know is that lugar is injured he believes in his testimony he shot me once he's going to kill me if he gets his hands on this gone it's a wallop he's telling me order and get on the ground stop get down he's not complying he has to release the canine canine comes out he's still telling clout get down stop he's not as a great question that video is very it's a lot of gaps in the video because there was a individual across the street it was a janitor who was trying to film it but he was also calling to to let people know what's going on in question no it did not but what what was captured two things change your question there was a deputy watts who was in route as member lugar didn't have any backup which is part of the reason why i think what he did was was reasonable we have what also to the individual who is taking the video across the street said in his words it looked like quote was quote busting a move right so we all know he's going in the direction of that weapon in the deputy's mind the reason that he's going for that weapon is to get control of it and finish what he started and it's not a question of what he might do it we have a lot of questions in this court and cases it will get to know the nd where what could happen you know does the person have a weapon might they harm me this is not this case i mean this deputy already been shot in the chest two shots are going off not by anything the deputy introduced but by something that the individual pulled out of his truck and fired at the our st because it was st addressed by counsel if we're looking at n e a the plaintiff has to prove a disability i thought that issue was not being pursued r p o is that right i agree i didn't see it briefed at all i don't established law because that's an important part of a qualified immunity as you know and so he identified human vs gauger ian ramirez versus martinez i believe his case is it clearly established the law that what the deputy did here was objectively unreasonable  found a case where someone is actively resisting not just once but twice so he puts the couple in st right and then there's no tasing on the one but he terms and there's no back up and he's turning still got a couple on and he's turning toward the officer and then there's a discussion then he comes back in place tries to put this other cup on now he does a full turn back at the officer still resisting after discussion with an open door to a cab which we don't want hindsight had a gun we didn't know that then but under those circumstances when you have an individual for a period of time with two distinct resisting is when someone has a cough already on the wrist and is is clearly not complying with the deputy's directives i have seen no case under those facts that says you are not you are not to tase you were to do something else or just allow this individual to continue to resist because you can't get him on the compliance the deputy did attempt to get him on the compliance he certainly attempted to place the other cuff on the receipt just couldn't do it and under those circumstances i believe it's objectively reasonable i don't even think that we get to the qualified  issue on that because i don't think it's a th member biology i don't think it's all i know but if we decided to do to decide this on the you know courts have the option to go to the nd prong versus the st prong if we decided to do that i'm not saying we will but i just i mean i read mr roundtree from our carol decision you talked about clearly established law on this point about tasing and ceded an armed suspect in two thousand six and i just i wanted to understand well it's it's not two thousand six hundred more has the law been clarified i understand in certainly the corking goes to the qualified immunity issue if it gets to that point i have not seen a case where an individual is actively resist anything is a totally separate situation and i think the law is and should be there somebody is actively resisting causing a threat to the deputy after discussions and after continued attempts to get him under control that on the ticket he said i'm not doing it he told d them he has a discussion with them and he coughs one wrist they have another discussion he starts arguing about it so he doesn't just come and take the table this is of minutes and minutes are going past to try to get this straight and i agree for circuit excessive force cases they turn on the facts and under these facts i have not seen a case that indicates that this would be it would be c was just recently addressed in and of his statement there i think also if we're looking at the either qualified immunity or regular excessive force either in state or federal law which is the same standard reasons the facts and i see that point is what happens cloud is pulled away twice he's been tasered twice with no effect he's in pure rage he's got back in the cab of the truck pulled a know i'm sorry for mr cloud where was mr cloud shot by the door the side as he was lunging toward two with a weapon ok and again when you look at all of those facts this is not a case of what could happen or might happen in that i wan just address two cases it's the unter of us for city of rosenberg texas in that case obviously the court knows an officer shot a suspect because the officer believed this is a speck was reaching into his boot for a weapon but officer was justified in using deadly force when a passenger repeatedly reached below the officer sight line and the officer believed he was retrieving and nine even though he was determined to be on so in those cases the suspect was actually on  but the officers reasonable believe which is what we have to look at it's the view of the officer believed that his life was in danger that's in those cases again there was no going here there was a gun and we know there was a gun and the officer knew there was a gun because he had been shot by so in this case where we're the suspect is moving for the guy and he's already used to shoot the officer that is much more telling then the other cases where the officer had to think or believe or what we discussed qualified immunity  circumstance or coming from the officers position what he saw what he believed a reasonable officer in that position and based upon the facts and circumstance of this case which one disputed with additional court is correct that there was no was i will grant you the deputy luker could would have been justified in shooting judge at the end of that struggle when they got when he when he broke free but the time had changed the the reason the danger was over he did not have to shoot all he had to do to avoid this whole thing that want to say that life and made his life better was say listen if you don't s ticket you're going to go to jail he didn't say that he didn't he didn't do anything before he he went directly in to force compliance and josh was not doing anything  circumstances to me isn't that i would expect it i'm sorry it happened i'm sorry he was forced into that position it is a terrible case both for lugar and for the club family but you mr roundtree your case is under submission and to you and mr richardson and i say this also to all the attorneys who are here today how much the of the court and every judge on this court appreciates your willingness to come here to die for in person argument we all think that in person are human use much more beneficial to the court so we're grateful for your