s by the district court in this case in this excuse me in this excessive force case yes there are several reasons for this  request your honor but primarily revolves around this main guiding principle and that is that the judgment was prematurely granted on a record essentially devoid of any developed facts very unusual it's very unusual in this circuit in all the circuits for judgment on the pleadings to be granted in me in an excessive force situation it's not that it's on the heard of but it's just somewhat rare thank you your honors in this case the district court the universe of facts that the district court had before it really only consisted of our well plated complaint allegations and some videos that were included and are included in the record  on appeal so the universe of facts here is very very limited in scope and detail but we do know this much we know from the video and there's no dispute that your client was driving while under the influence because there's no dispute about that we know that he engages in a high speed chase the police come after him they put on their siren they direct him to stop he does not we know from the film that he continues to speed at a high rate and the film suggests at one point  driving his car fifty six miles per hour in a residential area near schools and homes we know from the film that he misses another car just barely and we know that he crashes it into a park we know further that he's directed to get out of the car he flees then into the park and we know that when  comes out of the park a different officer sees him and tackles him those are the facts that we have in front of us right no dispute about any of  that or is there maybe some minor dispute your honor i very much wish i didn't have to admit about ninety percent of what your honor just but unfortunately i do so so yes violated a variety of ordinances in the proc and the process while the police could have it differently the question is they were certainly free to use some force why honor i think it's a fairly simple these cases are never simple really but in this case we can at least look at the factors that this court every circuit and the supreme court has said are relevant to the inquiry as to whether or not an officer can use deadly or near deadly force and this was deadly force as defined by lee when we speak of deadly force we talk about the use of a firearm or a car itself we've defined as under some circumstances deadly force but i know of no case that has ever said tackling the defendant in and of itself amounts to deadly force rather than that the tragic consequence of the tackle was that he was rendered comatose for twelve days but have we ever suggested or has the supreme court ever suggested that tackling a defendant under circumstances like this would be excessive or not at least not that directly that i'm aware of your honor there have been cases i believe your honor involving such things as striking and chokeholds but not a tackle not that specific and i don't think we don't i don't think we need to show is that specific your honor because this circuit has said that deadly force is simply defined as force that creates a substantial risk of causing death or serious bodily harm there is one that person is not armed is not enough have haven't they said i'm sorry your honor i misunderstood your question can you repeat it please as not to sprinkle it rise to the level of some outing qualified immunity i think at the level of generality is somewhere between vague statements of the law and the specific factual circumstance presented to the officer i don't think it has to be nor has any case ever said it has to be the exact factual circumstances that would be that would that would sort of be unrealistic because of the myriad of factual circumstances confronting officers but what we do know is that this is the only question that i'm raising is whether this is fairly characterized as deadly force it might be that if you had a middle linebacker who weighed two hundred and sixty and was playing for the san francisco forty nine ers and he was running at high speed twenty yards and smashes the guy a receiver in the head that could be deadly force but that's not quite what we have here well that's you pointed up the problem your honor one of the problems here is that we don't know exactly how big officer mcclure is he looks big to me in the video he's certainly moving at at what i do know how far away it was far as the video can determine yes honor well there's no suggestion that the video in accurately recorded the confrontation between the officer and your client so how far away would you realistically say the officer was yards we could say that it was in the even twenty yards we can say that can't we measure your honor it was not one hundred yards i'll certainly agree with you but it was my estimate would be something like maybe thirty feet thirty five that's my best guess just looking at a video with no measurements but we don't know we don't know the answer to that question your honor on this record we simply do not know and that's one of our contentions here is that if you look at the video in your honour's may have already looked at it  no matter what the distance was it is absolutely clear from the video that mr cantrill had no weapon even though the district court mentions a knife it could the district court also concedes it cannot say on the record that there was a knife  involved it's not apparent from the video these arms at all which is one of the factors this court considers it's not apparent that he's the court seemed to say that mr cantrell was trying to evade police that is not a fair inference on this record at this stage of the proceedings look at spending on how you define what he was doing if you start at the beginning it seems to me undeniable that he was trying to elude the police they put on the sirens they say stop he refuses and takes them quite a distance on a high speed chase and then crashes his car into the park and they demand he stop again and he flees at that point the only point at which you could say maybe he wasn't fleeing was on the back end when mcclurg comes upon him and that's very important your honor because what's important are the facts and circumstances as this court has said what's important  circumstances confronting the arresting officer not what preceded by life or ross under our law we ask the question in terms of what an objectively reasonable officer would have done knowing all of the attendant facts and circumstances that is to say we would ask whether the mcclory if he knew everything that had preceded it acted in a in a reasonable way i'm so the mere fact that mcclure may not have known the three history doesn't seem to me to be of any great moment here my missing that i've struggled a bit with this issue myself in reading the cases your honor because it's not always clear what is the universe of facts and circumstances that we construe the court should consider when evaluating the use of force but it seems to me a fair reading of the cases suggests that we don't give officers super knowledge of everything that preceded the arrest instead we give them knowledge of the facts and circumstances confronting the officers at the time of the arrest and so i i don't think the case to support that contention all of us is probably thinking about the opinion he wrote in general the smith and quote from that for the mole both the united states supreme court and the florida supreme court have allowed the collective knowledge of the investigating officers to be imputed to each participating office so i think what judge marcus just said is the low of louse circuit that we have to assume that mcclure knew everything that that some mcclure did know crucial facts because we know from that even if you i know you don't like having the st big deal in evidence but reasonable inference it seems to me is that he knew that this was the person that they were looking for and they have bullet he knew without terribly smith i think they a reasonable inference is that he knew the crucial facts about what find if they've been doing it do you think i'm wrong there i don't think the facts support all of that with respect judge anderson because surely he cantrell in this sort of wooded area we don't know is not in the record because the case was decided so prematurely we do know he obviously knew this man needed to be apprehended we do know that much but the district or not that your honor just as application to the case of the because the district court on page nine wit much further than just saying you know the officer had knowledge of these circumstances he also said and turn around in one of the way did he not know he did not your honor i wouldn't say that's a reasonable inference he turned around and sort of did a little circle it looks like to me he was sort of he looked confused to me your honor about what to do we  dismissive wave like to me it's suggested i'm caught and i'm given up and then he his arms are out by his side clearly showing no weapon and then he turns and puts his hands up and three steps by my count yields liability at one thing he should have done is given a verbal command to the man to stop and put his hands up he could have very easily done that without subjecting himself even to the risk of a knife that he says  wouldn't want to tackle a man with a knife because you might get stabbed yourself so the intelligent thing to do the smart and cautious thing to do for everybody involved would have been to order him to stop and put his hands up and surrender not launch head st into a tackle could have killed man we're all talking about seconds here are we are we talking about yes the policeman making a decision and moving in seconds you and me and aren't we supposed to be objective  looking at the objective reasonableness of his behavior yes or if he thought the man was walking away it's true he may have turned around but by that time the decision had already been made isn't that reasonable on the part of the officer i would submit it is not your honor because if you look at the video you'll see that there was an intervening period of time when a decision very easily could have been made after he pulled up to where mr cantrell appeared on the  roadway the officer very easily could have decided i'm going to i'm going to make him stop and put his hands up but it appears to me that he decided at that instant i'm going to tackle this guy for whatever reason and whatever or whatever reason would be whether we believe that he knew what had gone before namely that this individual had eluded done everything he could to elude arrest and in light of that whether it was objectively reasonable for an officer to rush headlong if the appellate kohak doesn't know any better then they officer certainly would so what bothers me about your case is that we've got contact which in my view the video which i've looked at many many times i think is less than a nd in fact in my view of it when they a said and provide that that it was almost simultaneous so we've got that kind of similar situation which involved this officer that that it was not clearly established lair and it seems to me to be extremely hard for us to say not only that they often as actions were objective reasonable but they were so clearly objective y reasonable that every officer in his shoes would have realized that the post so you say my problem i hate to have to disagree with your honor again but respectfully i have to disagree with the analysis of and how it applies to this case because to me the to me the similarities with provide are only superficial because in provide we had a suspect who is in the case thirty feet from an elementary school he is carrying a rifle or had been carrying a rifle that he put down near him he had dropped that you both pull the and it was a considerable time so that i don't think there's a lot of difference prevented are to drop that well the gun and knife were near his near provides feet your honor so that any movement any slight movement it looked to me like he could've obtained those weapons and done harm to either of the children nearby or the officers confronting him that is not the case here at least on this record we don't know where his car was or how close it was to mr cantrell you know we know he had been in a car but certainly unlike the window pretty much because in the st video you could see limited there's an old saying that a picture tells a one thousand words well so many more words as a video tell if we did not have the video and we had to dig through testimony and recollections and different perspectives that would be one question but we have here is not only a video that there is no dispute as to its accuracy but it shows directly what officer mcclure confronted and  focused on the entirety of the of the event and what that event shows setting aside what preceded it what that event shows very clearly is that is to cantrell comes up the bank sees the  police officer and you can tell from the video that his lights are on dismissively waives him like i don't care about you starts walking looking up the hill looking for an escape route turns around well by then office according to district court the entire episode was three seconds from the time he exited the vehicle until mr cantrell was on the ground by the time he turns around officer mcclure is already on his way  put up his hands he could have gotten down on the ground he put on his hand had me don't his hands go up before he's tackled a nd according to the district court it was a nd before it was as in the case th going to surrender he was still trying to flee so i think that is important as far as the universal facts in the case the nd thing that my opponent said that i was surprised by if i heard it correctly he called this deadly force in the back case it very clearly called that non lethal force even though the results in that case as in this case was a serious injury it also surprised me was used or in the case it was a a sage launcher which was termed a less lethal but still lethal force against someone's head i don't think there's any way that this could be considered deadly force under any definition of the supremes court or of the th circuit i think what's what's important is some of the admissions that the plaintiff has made in the complaint as well as in the record and in the video one is in the complaint itself even if we did not have that video he states that an officer of the police department is paragraph seven attempted to stop his vehicle the next paragraph he says that he exit is vehicle and proceeded on foot that's a fancy way of saying he was fleeing the next paragraph paragraph nine says defendant mcclure proceeded to intervene in the traffic stop so he's already i before raising his hands he's admitted that he surrendered immediately before this in his appellate brief immediately before he was taken to the ground he said that also that this is in the pellet brief that when mcclure running that that was when he put up his hands when he saw that the seizure was inevitable that there was no means of escape the video i've gone over it what it shows with mr cantrell clearly shows someone who knows that is wanted by the police knows that this officer is there to stop him and is still trying his best to get away into the larry very last nd when it's inevitable  circumstances that that is not a substantive violation i don't think there's any question here that there's any clearly established law the case they've cited two are deadly force cases one it was decided afterwards but is not anything similar to what we have here the district court of course dismissed the claim saying that if there was no a constitutional violation there could not be monella liability we have an have banned and any official capacity claims under state law against the city and finally even if this court were to reverse on the th amendment qualified immunity and now issues and state law there's a statue of limitations defense that the judge reserved based on the lack of diligence and serve in the complaint so unless there are any questions that's our position we think it's pretty clear that based on the record and the case law the facts that are led by the plaintiff and a supplement up by the video that they've admitted is accurate that the the claims against the individual officers finding that there was no constitutional violation and so the money will claim according to the district court had to fail on that ground floor about the merits and i think that was the application of this court's factors analyzing that situation especially we do not reach the goal of the amendment issue itself and resolve that pollution of the case solely on the to the city yes your honor we have alleged as far as the policy or custom requirement of menow to hold a municipality liable i believe we have at we've addressed this in our brief but i believe we've adequately alleged that the customer policy of the city of elegy was the moving force behind the constitutional violation it is true that we have not put in anything in the complaint about the precise contents of such a policy  because it so early in the case would hardly be able to do that there's been no discovery conducted your honor but as far as alleging the one they'll claim i think we've met their political standard to do that in terms of alleging a policy or custom your honor the the main factor this court has always considered in excessive force cases is whether the suspect poses a risk of harm to others or to the officers as seems to me all the factors kind of revolve around that main factor here it cannot reasonably be concluded we contend on this x at this stage of the proceedings at least that mr cantrill while acting stupidly no doubt and we have to face that he was not posing a risk of serious harm to others or to the officers he was not armed he was not resisting they may want to characterize him as running away but that's not a fair characterization at this stage of the proceedings although it may appear later at this stage of the proceedings that's simply not a fair conclusion to say that mr cantrell was a serious risk of harm acting stupid and being a big harm to somebody posing a risk of harm is not the same thing as as to the statute of limitations issue i wanted to address that your honor the district court mentioned the statute of limitations but didn't decide the case on that basis so we tried to address that in our brief on the on the trying to anticipate alternative grounds that this court may consider one thing we did not put very clearly were or maybe at all in the brief is this issue of tolling the statute of limitations under the georgia tolling provision for mental incapacity in the complaint we say that mr cantrell suffered a coma he was in a coma for twelve days after this injury and twenty two days in the hospital we believe that we if we were able to conduct an discovery will be able to support the idea that his mental incapacity told for some period of time the statute of limitations and that a determination on that basis should await the development of a factual record lived thank you very much thank you