to focus my argument today on whether the district court heard in granting summary judgment by concluding that deputy hulk did not utilize excessive force when tasering michael and violation of clearly established law  some relevant facts bear brief discussion as i indicated this of an occurrence september twenty second two thousand and thirteen and the small town north wood iowa just south of the minnesota border three officers responded the first officer who was on scene deputy short the record shows he had very little law enforcement experience he had just completed field training and had not yet it attended the iowa law enforce was dispatched to a disc domestic disturbance call at the shock i rez advance and upon entering he saw what we would concede admittedly is a very disturbing scene it was very alarming michael was accosting randa sh  which we assert was successful at least eliminating michael from posing a risk to michigan i or anybody else in the residence at that time i know there was some dispute over the semantical use of the word control but i think it's safe to say that deputy short was successful in neutralizing michael for approximately eight to ten minutes before a nother deputy deputy whole arrived on scene and at that point if you look at the evidence in the light most favorable to us there is testimony that after deputy hulk arrived deputy short voluntarily got off of michael with the expectation that they would be able to handcuff him at that point they were in correct michael quickly got to a speak took an aggressive stance against the two officers who attempted to take him into custody and handcuffed him deputy hoke attempted i believe at that time to use a  that was unsuccessful but fortunately a few minutes later the third deputy arrived deputy smith he too was armed with an x twenty six taser and attempted to deploy it against michael but functioned so all three officers elected to go hands on with michael and at this point is when you can see the video footage from deputy hoax taser camera we're now in a separate room from where  was located michael is situated on the ground he's lying face up and he's looking at deputy hoaxed taser you can see his eyes his face very distinctly in the opening segments or sequence of the tas footage we would assert contrary to what the district court found there's a clear demarcation between the first encounter with michael where he was upright he was actively aggressive he was fighting with officers when he was on the ground several minutes later admittedly disoriented fatigued and really unable to continue fighting in the same manner that he had earlier and the district court characterized the situation from beginning to and including the depictions on the videotape or camera footage as tense and rapidly evolving and uncertain and as a result was a continuous and fluid  encounter we would disagree with that there are three cases that we rely upon one of which is instructor from the sixth circuit court of appeals it's the landis case that we cited our brief would also rely eighth circuit brief or excuse me opinion that was issued well in advance of the encounter but officers had with mr zoo bride that's the crowd decision and there's also a district court decision out of missouri that's instructive on the issue and what we respectfully submit to the court where the trial court heard is it fair to give michael and his parents all reasonable inferences one thing that we noted in the opinion is the court claimed that it was unable to determine the loud noises or that they were attributed to pain or anger i think they said it was on answerable and if you watch the video to us giving us  inference as it's very clear that lot of the noises that come from michael arse right at the time when he's being taste so we believe we should get an inference on how he was acting at the time that the  video depicts the interaction another issue that we have with the district court's opinion is that it claims that it was too difficult to tell the number of times the taser was discharged now as it's evident from the video it make clicking sound when it's been activated and it's going through a five second cycle and there are at least ten or so times on the video where you can hear this clicking sound do you know how many of those were actually successful or actually made contact to discharge into the recipient of the charge the defendant's try to dispute that each and every deployment was successful because they claim that michael was pushing the tas r off of him while it was being deployed however for summary judgment purposes i believe the court correctly concluded that it should infer that all of them successfully discharged and cycled while being deployed on michael so we would ask the court to do the same especially when looking at the evidence in the light most able to the nonmoving party and also basing it upon the reaction from michael while he was on the ground certainly reveals that he was experiencing pain and any argument that we may have that michael was actively resisting on the ground i would ask the court to review the video and it appears as though if there is any response physically that manifest from michael it's at the time when officer hope is actually deploying the taser so it seems to me that the defense is to the taser that he's actively resisting he's fighting but that's a product of the taser being used on a subject and when you have a subject which is like michael who was you saying before the taser by hope that you brad was submitting are you talking about when he's standing up on the ground or standing up no i'm talking about the uses that you are objecting to you say well the only resistance was his response to the taser so i'm wondering is are you saying that the initial use of the taser on the ground was unjustified because he was already submitting well the way that i look at the first deployment of the taser if that was in isolation perhaps it could be justified i mean i'm talking about at the moment he was deployed was it reasonable because he was still fighting them even though he was down there i can understand where an argument would be made to support that your honor but if you look at the facts of this case  defended hulk had admitted at that point that michael that it's possible he looked disoriented and he certainly didn't go so far as to say yes i would agree with you in his deposition that he was disoriented but he said i could see where someone would  conclude that he was acting disoriented and and so when you look at the evidence and give us all reasonable inferences you have a person who's on the ground it's basal expressions to convey to the engaging party that he's disoriented i certainly would question from my perspective representing the the point of party whether that was appropriate but here in this case judge we have a five second cycle the first one followed by a most a two second gap and  immediately again there's another five second cycle then there's only a two second break and officer hope again deploys for the third time and what do you say they were so should have done well considering that n when hands on with him and attempted to place him in handcuffs as there was no point at which he submitted to the officers and forward well i would say there's no point on the video where he actively resisted o anything in the facts to indicate he was ever not believed you didn't send intending to get back to the victim and just so we're clear our claims are based on what's on the video so we're certainly not are going there is any excessive force where they attempted to t ake him down to the ground when they were wrestling with them when they were both up but as far as being on the ground we are serving that he was at most passively resisting or non compliant because the only directives given to michael taser video are either get over or roll him over in the statements that were being made at what point that the officers conclude he was not a threat not only to the victim but to them as well well the fact is  he said he was on the ground he was face up unlike before where he was threatening them verbally saying i'm going to kill you or he was spitting at them or swinging at them kicking at them trying to use a pliers against him at this point we're ten twelve minutes in where he's been with one officer the two officers and three officers we have to recognize he's fatigued at this point especially when you give us reasonable inferences he's laying on the ground he's disoriented that's even again looking at the  record in the light most favorable to us even hoke would suggest that so you have a disoriented subject who's on the ground who's been battling officers for tran twelve fifteen minutes he's not kicking anymore he's not threatening officers anymore they're not asking him to put your hands behind your back they're just saying roll over get over your isn't the rollover necessary to get the hind hands behind the back because he's on his back and he can't be handcuffed behind his back perhaps but also  i would respond by saying if you see such a a threat to officers why aren't there getting on him immediately at that point i mean they're there at all any of you mean would go hands on with him grab him to flip him over handcuff him in the front do whatever it would take to neutralize the threat they claim he was although we would submit that he was not an active threat at that point so that's how i would respond to that question i mean we the evidence establishes these officers reasonably believed he was either under the influence of a controlled substance or alcohol or he was a mentally disturbed individual and even in giving looking at reasonably from that perspective the officer still nonetheless taser after tas taser there were deployments there was fifty three seconds worth of deployment within a three minute and fifteen second period of time i don't understand that point you say they reason to believe he was under the influence of drugs and therefore nonetheless they tas instructed these officers who are quick with x twenty six tasers if you are dealing with a emotionally disturbed person and you continue to use it it may not have any effect they they didn't pay attention to that warning in that instruction and they continue to tase him they tase him in such a way that there was very little if any break for him to actually respond i mean at one point if you watch the video your honor you see the taser deployment occurring the cycle happening and they're telling him to turn over i'm not sure how you expect someone that you reasonably believe to be emotionally disturbed to turn over while you're tasing them when you have an officer who claims i don't even i can't recall hearing the tasers yet we're going to fault mr zoo brod because he didn't roll and that's what you can hear mr zoo brought vocalizing while he's being tase so we believe that it's a fact question as to whether there was sufficient time for michael to even responds to summary judgment would inappropriate not respect but the bottom line is we don't believe that this was the rapid evolving situation that the court conveyed it clearly demarked just like we had in crowd just like we had in landis at the time when the t supreme leader violent shockingly violent encounter deputy short was called to the scene by citizens who were screaming from the house deputy short described the screams as the worst screams he's ever heard he proceeded up stairs  found that the bedroom door was locked he kicked it in and observed mr zubrin taking a hammer to the face of michigan he instructed him to stop it appeared that he reacted to it that was a unsuccessful deployment debbie short was then forced to go hands on alone with mr zuckerberg for as long as eight minutes in a struggle thankfully he was able to extract  z rod from the one bedroom into another and away from the victim but it was an obviously an intense encounter a violent encounter that occurred for a lengthy period of time finally after eight minutes a second  mode so that's what the ject of medical evidence shows in this instance shows how many how many there would have been and it appears to be two successful stunt of him there's two burn marks on his body that's all while he had one wrist and a handcuff which of course is a dangerous situation because that handcuff which is not restrained to the other can be used as a weapon and it is dangerous to the officers and informs how they try to interact with the suspect reflects a suspect who's constantly struggling fighting kicking resisting arrest non compliant throughout the regarding now the evidentiary issue which i want to make sure that i address is the district court declined to to to accept into evidence and use as a basis for his decision t statements given by four in t s these were found in admissible and rightfully so three of the four unsigned by the empty one of those three doesn't even have the name of whoever's making that statement in it and what was included in the record pursuit is there a judgment under the life investors case which we cite in our brief which has been it was decided in two thousand and twelve following and i met in two thousand and ten to rule fifty six the eighth circuit still states that statement by an individual must be supported by an affidavit and that was not done here additionally in a certified to be true under penalty of penalty of perjury none of that happened here for that reason and that the district court was clearly correct to do not consider these statements say it's plaintiff's burden to show that some exception to hearsay they failed to do it in the district court they failed to do in their opening brief they made a light effort at doing so in their reply brief but no clear analysis or weighing the objective reasonable is of the conduct and it's a second it's important to second guess the officers obviously these are split second decisions in tense situations which the district court recognized would there's a litany of case law that would support finding that the conduct of the officers in this instance was objective leave reasonable use we cite to the boys case where a taser deployments were made on a victim with six officers around that victim in this court found that to be officer instructed him to stop he failed to do so the officer took him down and he was apparently non compliant with putting his hands behind his back which from the video is the same conduct that mr zeroed was engaged and he was not co he was not putting his hands behind his back and in carpenter the court held that deployment of the taser in a situation like that with a non compliant suspect is objectively reasonable another very recent case in fact it was decided that case a suspect was in handcuffs in the back seat of a police vehicle and the law enforcement officer instructed him to move over from the seat on the end to the seat in the middle the officer perceived that the suspect was non tasered with a full body lockup which is clearly different from the present case you know here we had a violent resisting suspect by standards one who was gravely injured were nearby there were you know threats to their  safety and as to the suggestion that the officers just should have gone hands on they had done that for probably upwards of twelve minutes and been unsuccessful you know and it's also undisputed that  the parties were bloody and slippery making hands on encounter all the more difficult finding out as i want to address that clearly established prong of the qualified immunity test so there must be specific that says that taser cannot be applied on a violent noncompliance suspect and that's just what this case is he was violent throughout he was non compliant throughout the taser is an appropriate in the back seat of a police vehicle the court held its record held that it was not clearly established that taser to play that in that situation was improper and there's another case which is the buckley case which was cited by the district court below from the eleventh circuit where a suspect was tasered three times on handcuffs but was not compliant and in those instances the court held that the deployment of the taser on such a subject was court to take up the state law claims the district court refused to exercise discretion and the interests of judicial efficiency as well as making sure that rulings are consistent in this instance  the state law claims evaporative the federal law claims do and we would like an order that the district court also dismissed the state law claims in this matter or you'd like it but what about what obligation did the district court really have decline and here's what i would say here are the the case law suggests there's a number of factors of the district court should consider when deciding whether to accept or decline jurisdiction the district court failed to consider our state that it considered those factors and if it did those factors clearly militate towards exercising that discretion in this case because it would be economical efficient and ensure consistency of  also must fail so as reasonable this is the standard in both that's right so it is a matter efficiency and or stand the economy argument i was just wondering what real threat there is about the court has previously held that the use of a taser is a significant use of force more so than punching or kicking warning which is a kind of conduct which was sanctioned in the crowd case therefore we would submit that it's clearly established you're not allowed to taste someone gratuitously repeatedly repeatedly if it's not gaining any advantage or benefit particularly when the circumstances you've provided to the court this morning will take the case in device and then the decision in due course thank you