abolition that officer staples tried to restrain mr taylor by pulling him up as mr taylor pulled away from officer capable we also believe that offers goes in is and was entitled to per my judgment because a lawyer for the simple fact that mr taylor failed to provide any clearly established law demonstrating that the use of a controlled takedown under similar circumstances constituted an unconstitutional use of force now as the court is aware it was the burden on mr taylor to show number one that there was a violation of his constitutional rights and that the means we believe that this court should side that particular issue rather than remand but on your st point i've as a court is aware of the scott decision and i believe the max mcname court focus was on one fact one fact and that fact was whether or not it was a push or whether or not it was a poll and we believe that the un refuted evidence starting with the binding admissions by mr taylor and his complaint and i direct a court to fifty two of that complaint where and it was alleged that quote well that mr bound by asked the purpose of a complaint the framing up in the court this court has held many occasions that you are bound by those issues you also allege that quote as plaintiff taylor and stink that lead moved forward that's when he was to taylor and i ask them questions and so your recall quitting one step forward or answer yes i do yeah it is one step question and then what happened answer my jacket was pulled from behind bumped and that's what caused you to step forward right answer that board there was a presence behind me question was that the four after he grabbed your jacket answer no stamp jacket of saw from behind question ok answer step jacket assault from behind question so you step st and then you sell him grab your jacket answer my jacket was being pulled yes and that's consistent with his allegation is consistent was with what was on the video and of course of pomo is not a put and lastly your honor mr taylor admitted his deposition that he moved that he instinctively he said he instinctively you've you stated the fact that you strongly believe them to be the district court did not find those facts and in even in viewing the light didn't didn't find there is a dispute why do even putting aside right or wrong whether the district court ultimately is right or wrong why do we have jurisdiction over this fact i feel are really talking about push pull up down and the discord just said this is in dispute what's our role in that well your honor we believe that number one have now we're talking about push versus pull and fact finding so i think those are twenty two different approaches and i agree that we could if we had a set of facts that were found in the light most favorable to the planes if we could review that to determine as a matter of blogs where there are a compressed cd but whether we're deciding whether to push or pull that's where i'm just concerned about our role our jurisdiction to actually engage in that discussion contradicted in blakely contradicted by the record is his complaint is is his deposition testimony and this video we believe that no reasonable jury could look at those admissions conclusion and i'd like to talk also about of course is a two prong analysis whether or not there was a constitutional right and this issue about is there some factual dispute about that that focuses of course on the issue of whether or not there was a constitutional violation the law says that a controlled takedown in the circumstances is permissible in light of the fact that this is a rapidly evolving seven nd situation but who should not to the side of course we have to be as you raised by judge matsch which is whether or not the plaintiff maintain his burden of presenting to this court or to the district court any clearly established law holding that this control take  down under these circumstances constitute an unconstitutional use of force in this court has repeatedly held this court has jurisdiction to determine back issues as well as the question of looking at all of the facts in the in the newspaper whether or not versus harston case reaffirmed that or recognized that last year and what that both cases held is that clearly established law must be particularized to the facts of the case and that the pla has the burden of the den i find a case where an officer acting under similar circumstances was held to have violated the th amendment and we believe that no such case has been provided to the district court no such case has been provided to this court and the reason being is because there is no such thing carol this is just this is just moving it was better even worse because the state of the law even discussed with the state of the law that's exactly right your honor the judge did not address the issue of whether or not there was who will be established law as to this excessive force the judge d no clearly established law but the court is absolutely correct that the court did not address the closest i would block question and we believe is the lowest average precedent by this court that good court has the jurisdiction to conduct that didn't make it fact finding even in the light most favorable to plaintiff and me then they were disputing so we've got a set of shifting facts so how do we determine and how would you propose that we would then determine whether there's any clearly that would be it was a constitutional violation and that is the purpose of that prong we believe that the qualified immunity analysis oh so the court then would assume all those facts that in our view is that you assume all of those facts nonetheless despite those assumptions is asking the court to nd guess the district courts assessment of the fact that all of the evidence cable's is trying to get this court to make a decision soley on your review of the video footage of the meeting ignore all the other evidence favorable to taylor capless asking this court to determine that the evidence most favorable to taylor the most favorable and cables conclusively establishes the facts but it does not the district court very carefully reviewed the video and found it  it was inconclusive the district court then considered the other evidence deciding all reasonable inferences in favor of taylor including the eyewitness accounts of what happened as there is no question that at the time cable's came up from behind taylor without saying a word he grabbed taylor pushed him by and tripped invited slammed him into the ground head st there's no question that taylor standing there speaking standing still at this hand clearly bijan the visible it's undisputed tables conceded that at that moment when cables comes up from behind him without saying a word that kick taylor is not a threat whatsoever the district court correctly we believe that the disputed fact that predicate fact that precludes determining as a matter of law whether cable's is entitled to qualify me to be that predicate fact that's to that effect not accurate or has is he changed his view of the what what is your sense of that history as a fact can can't that be established as that's not dispute what's disputed is that cable car is tailored to move forward the petition it's not in mission what it says is it when you read the petition in a hole in what the other evidence says  to move forward because of cables cables causes the entire chain of events that happens when he grabs taylor and is caught in that that one in that the moment he grabs taylor he is d in essence arrest them remove them from the environment such as that meeting that they were not entitle to to use any force of these force as grand that an officer coming up behind someone is standing still who is not threatening not resisting at the moment that cable's grabs taylor that at that moment at least the append cities committee is a peaceful established as this court held in rounds that coming up that when you have somebody who is not violent not threatening not resisting and just standing still speaking that coming up from behind and pushed grabbing pushing  she believed call the cop the police on her and she is turning away from the officers their feet right nor their commands a come back and she's going to head it towards the witness in a threatening manner that the officer perceived as resisting their commands to to come back she was threatening and under those circumstances reasonable for an officer to take her down that is very different and what happened here when you have mr taylor where sued to be silent he has and he continues to speak he is instructed that he's about to be taken out of the doesn't stop speaking and i can't see what the limiting principle actually is in your argument that this sort of instinctual starting to move away from an officer who is has been directed to take a person with that which is a trespasser perhaps in removing from the premises i mean and you know he says i instinctively move well what is the limiting principle on the idea that that somehow becomes an involuntary movement right i mean it i mean i don't see how you ever limit that because anything anybody can always claim is that why wasn't thinking i was just movement because instinctively i was concerned someone had come up behind me i didn't know who they were and they were and they invaded by personal space and i had stink to clean move forward and all the while he's moving forward towards you have we have to look at this paragraph as a whole because that's just one part of it so when we look at this paragraph in whole it says at which time under nonstop plane of taylor defended officer people's approach plate of taylor from behind and without warning command identification or order grabbed plaintive taylor's jacket causing plaintive taylor to instinctively move forward what that says is that capel is causing taylor to move forward instinctively it does not say taylor is on his own volition moving forward it does not say that taylor is resisting or that is a threat what this says and what taylor had said is that the vision is i was grabbed and that caused me by cables caused me to instinctively move forward here i understand i took one stat and then i and it's all caused because of cables in a reasonable officer under these circumstances what i going on in the mind of a person mr taylor's position you know once a person starts moving towards the board you know people are tackled i tell you this that in the courtroom is represented  judge when somebody started walking towards the bench without d permission and they were a party to litigation that had been eaten they were taken down by either united states marshals or by court security officers i mean because that you are the cause of that person moving forward that that officer cannot then it's unreasonable to interpret that as someone trying bullying or trying to resist arrest that the officer cause taylor to move officer to have interpreted hit the officers own conduct in a long causing taylor to move forward as him resisting or it's very different than someone walking towards the or taylor was w any moment before capless grabbed taylor causing him to move forward taylor standing still speaking committed not only violations committed as for thirteen seconds refused to leave the meeting when the board chair had of political protest the continuing to be the board carried requested that easily for in this had been going on for thirteen seconds when cable comes up from behind without saying a word and grabbed taylor he could of favorable to taylor that he does not know that in an office there is behind him and taylor testified that if i if the officer had come from the front or if i knew that there was there i would have less meeting he d a suspect that was not violent and not threatening circumstances nonetheless that they've given that they the law at that time with was two thousand and five and a reasonable officer could believe that as long as he didn't cause more than the minute from his injury then his actions were protected by qualified immunity