community and immunity defenses there are a number of defendants still involved in the case in our position is that the evidence is construed by judge we'll see a factual interpretation by judge wells  or the trial judge missed on a few points i'd like to address some of those points the record is fairly substantial and it in the background is an overview is that police were called to this address they conferred with the people at the address and told them to keep the noise down there's no dispute about that the police came back in when they heard more noise and on the way back they came into contact with a lady who said that she was threatened by a person in the in the apartment judge wells looked at that issue about the threat before the two officers went back they call the two officers call for backup when they went back they contend that they advised mr and all that he was under arrest to submit to a taser and then he declined to do so and that he made a fist at them and basically gave them a motion to come come on and give me the taser was deployed  officers have a version of it mrs no all who was in the apartment has a different version of it but so if we can just focus in before we get into the details of the facts if there is a fact dispute under johnson v jones do we not lack jurisdiction to consider your appeal well when you look at the facts here judge wells the trial judge looked heavily a that were there and one of the young rebutted facts was that the witness who complained that she was assaulted gave an affidavit and the trial court filth that maybe there were questions about the f a david because it was given some time after she had been stopped for a dui that fact is uncontested that the witness gave an affidavit is a matter of fact the evidence here shows that so what i'm saying is the fact is on controverted that she gave an affidavit in the she complained to the police if the trial judge thinks well maybe there's a question about that because there are some significant credibility issue that could be raised that that witness gave the point zero one which isn't even under the influence in the state of ohio that's why the charges were dismissed the breathalyzer record is in the record in a basic question that i still don't feel that  i understand your answer is if there are factual issues that you are challenging so here you're challenging judge wells's belief that there are credibility issues that could weaken the value of that affidavit why under johnson v jones doesn't the supreme court say to us we the court of appeals do not have jurisdiction because of the genuine issue of material fact i think the x or the facts are clear there's no dispute about the fact that an affidavit was done there's no dispute about the fact that that witness complained of an assault which led to the police to believe believe their education circumstances that issue is not  dispute it's the trial court's interpretation of what they had fact meant which is in dispute so our contention is you can look at that to novo and see what actually happened here now the the investigation of this  had witnesses interviewed that night here's a twenty five page police incident report they went out they took photographs in one of the this same witness was interviewed that night and it's part of the record in she she gave a statement that night comports with her affidavit i think it trial court felt well somehow we had control over that witness we had no more control over that witness than any of the other witnesses they were playing as what if he had every opportunity to take her deposition and show that what she said was not true but her version of the report she gave that night is in the police report her witness statement is there the police recorded it themselves each police officer there gave a statement and  in in terms of the fans here we're not arguing the facts what we're saying is the facts are clear that she gave that statement and they had all of the actions that the police officers took their given and let's assume that we're not we've got you're not addressing the stat whether there is this dispute of material fact what this second graham factor looks to is whether there's a significant threat to the safety of the reason because of the issue with the what they call it the summons for operating in that state it's operating a motor vehicle under the influence and then the subsequent dropping of that within two days of making an a t but also the fact that there was an officer in gas a in this activity who had turned off his recorder for which he had previously been  don't like punish but previously been the occasion of a reprimand for failure to turn it on and so he knew he was supposed to be recording and then third that even after ms patrol aska came and said this is what is doing and this is what he did to me in the apartment their testimony is not that they went to arrest him for a felony but that they went to arrest him for disorderly conduct which the officer himself even more significant because the officer says i'm going to go arrest this guy for disorderly conduct so we are in the arena of a charge that he considers nothing and what that impacts is whether the officer believed that there was a significant risk of harm to officers or other and isn't that indicative that the officer himself does not believe that there's a significant risk of the officers if testified here that they did feel it was a significant but they've also testified that they were not going to arrest him anything for anything other than disorderly conduct even in the laws of the testimony an affidavit  but but that doesn't mean that they weren't concerned about harm to people in the in the apartment and also doesn't mean that the affidavit of patrol is is not correct or that her statement to the police that night is not correct or that her witness statement is not at all all of those issues and may appropriately were light to the court's determination of the second graham factor correct that's right ok but our position here is that the officers at the time thought there was a threat they thought they acted appropriately and it's the objective is there some objective reasonable belief that they have to hand and they felt they did now whether they can voice it in terms of should we have charged him with facts that call into question the credibility of that witness yes but if you look at some of the defendants that are still in this case for instance officer collins has testified that he heard that the taser shot he still in th case in the trial isn't a failure to protect kline right he said it took him he thought it took him twenty to twenty five seconds to get up the stairs after he heard it there's no evidence that as he's in the room there that he had any idea whether the teaser was still in gauged or not so he had no ability to to stop officer soto from whatever soda was doing and if you look closely at what he says in his deposition  he had to go through the same door the process here is you have to open the door and then close the door behind you to get in this hole spaces is actually the diagram shows it probably less than six feet by six feet so if you look at officer collins there is no indication that he even had an opportunity to to stop soto from whatever soda was doing and all three officer said that there was resisting arrest it's a given fact that this individual did not have his hands behind his back he couldn't get in behind his back for whatever reason there is no dispute that he has to take the facts in the light most favorable to the planet and the plaintiff is being  and there's witness testimony that he was convulsing so how could that be resisting arrest well the basis for them saying that he could not put his hands behind his back is is the article from someone who is a teacher the plaintiffs refits as we did some studies of taste someone in the back into pass a tates them from putting their arms we either bent but the concept of the taser is that it incapacitates you from resisting and the testimony here is he was resisting now whether he's resisting or he just can't do it the officers don't necessarily know that at the time but i would like to court to look certainly at some of these defendants including hughes who says i don't even know if the taser barbs make contact or not so the overflow here is if you find that that soto should not have done what he good morning i'll give her it's time for the apple e becky no it's here today and i'd like to start with the failure to protect claim we have hughes and collins both trying to cuff mr noah while he's on the ground in his deposition hughes said at page thirty three which is page id fifteen of the six that i asked him so the type of resistance that you experienced from his arm was consistent with the effects of the taser yes so he may well not have given his arm up because the electricity was still flowing through his upper torso correct yes so hughes knew that he was rigid because he was being energized and said the same thing in his deposition when i asked him that at page fifty two so collins is document forty two in the deposition in the record and hughes is forty four your opponent was saying that coincided took him twenty er creates a really distinctive clattering sound very loud so if he's being energized collins is hearing it and collins says at page fifty two of his deposition that mr know it would have been incapable of responding to a verbal command that he put his hands behind his back and that's no big surprise because training officer lynch said that's what happens training officer smith said that's what happens when they were deposed these men were  trained by those folks so when you and that's one of the problems with a twenty one second trigger pull to get us back to soto i mean you're only supposed to do a five second burst and you're supposed to c power so the whole theory is that the backup officer comes in cuffs as soon as that five second burst is done because you don't want him to be energized you know while you're trying to cuff him because they'll still be rigid and so by doing a twenty one second trigger pull they're pulling on a guy who is totally incapable of responding and this was so obvious talk about reasonableness that robin mckenzie's sitting on the sofa calls the police on the police and she says in her nine one one call they're saying stop resisting but he can't stop resisting because he's not resisting he's being shocked so even a total pedestrian to this whole notion of tasing could tell that mr noel was incapable of putting his arms back this is been a core contested fact since the beginning of this case it remains a core contested fact so do we have jurisdiction and chance to hear this appeal you don't but i want to talk about this because i've been doing these cases for thirty eight years i was around before michel versus for and now we've gotten to the point where every excessive force case takes an extra year you're getting faster i mean the six circuit is moving its docket better and this case is an unduly delayed but this is going to take another year so let me suggest one thing we filed our motion to dismiss this appeal two days after they filed the notice of appeal the district court order has thirteen really dramatic contested issues affect that haven't been really undone through the course of the appeal what what i'm suggesting is that when we move to dismiss appeals like this the court should look at the record from the district court like you do for all the other issues but instead what we're getting our opinions like the one here from the from the motion panel that says well let's see how the briefing goes why do they get to unto their failure to accept the facts in the light most favorable to the nonmoving party in the court of appeals that was you're looking at a done record and in fact we just got a decision in the baker case where the court said and the reply brief the appellant has finally accepted the facts in the light most favorable to the nonmoving party but we never got to reply to that now we prevailed and you know if you say you don't have jurisdiction technically we're prevailing here but we get nothing on the merits of there's no help for the jury instruction were delayed a year and we knew this back at the time we filed the motion to dismiss i mean i'll stop my speech but but i'm suggesting that when these motions are filed at least the court should be looking to the record as it existed in the court in the district court rather than giving the appellant's another bite at the apple or else you end up with a situation like this where we're standing here arguing facts and we should do that on a motion for summary judgment and there's another huge fact which is right at the door the only thing we agree on in this case is that this is one weird apartment because the door into the apartment opens in a way that blocks your ability to go into the living room so you're standing in the hallway talking to the officer which by the way distinguishes this case and the entry you'll know that that becky knows criminal case was dismissed on a motion to suppress because the entry was viewed as not being consistent with circumstance jurisprudence and we have mr noel standing there read and write in the hallway and the so if this is the door it's one this way the living rooms over here to my right and he needs to close the door at least somewhat in order to go into the living room he's done talking to the officers and somewhere else house now there's a hall to the back but nobody argues that he really went that way he in all his guests were in the in the living room so he goes to leave and decking all says he's totally in the living room she's sitting on the sofa he turns around to face the officer who follows a man and it stays right there in front of her and then falls down the officer claims that he tases them while mr now is in the hallway this is a big deal i mean are you tasing from the entrance way and from the landing with the officer standing or if you really mark straight in like back well the physical evidence in the judge picked up on this is that the barbs hit him on the right side now again the door opens this way he's walking this way had the barbs get over here if it wasn't when he was fully exposed to the officer and the officer claims that he's already running away when the officer tases him and i didn't know whether my taser really caught or not well that clacking not going to happen unless you've made contact and so the office records there's always  in the testimony that the clacking is continuous you know i can't cite a page i i can tell you that i did post to training officers and i suspect that i asked that and i apologise i just don't know it's when it's in motion the other thing that's going on in this case is we've got a series of affidavits that were filed by the officers after they were deposed and those affidavit continually are cited by the defense counsel in support of their argument that there are contested issues of material fact one of the facts that they have in those affidavits is the term actively resisting as if they can make a fact out of something that's really a legal term metric words from the case law we cite to the actual contested testimony when i was deposing the officers it's very i think it's inappropriate to file affidavits after the officers been deposed i can't then re depose them then they try to create contested issues of fact out of that the district court sorted through all that and and really did rely on the evidence in the record the exhibits the police reports and the and the actual deposition testimony and i just caution that when they're when these affidavits floatin on top of all that they have the least weight or should have the least weight since nobody can really challenge them and the same is true approach aska i think she was manipulating the officers i think that there's something going on with her we couldn't find her to depose or then they get an affidavit from or this is the type of stuff that happens when you have cases like this and this is why they need to be trite because we've got to put all these people up in front of a jury and what you find then is that there really is a  very good reason to to affirm the district court both on the entry which was not supported by probable cause there was no it didn't circumstance there was no felony and they came complaint well they and they used the noise complaint for the community caretaker argument which they raised for the first time in the court of appeals so i don't think it was in the officers head that th ey were doing any community caretaker function and none of the community care taker cases involve subjects that actually come to the door and talk to the officer i mean they can assess right there what's going on and if they wanted to talk to beck knowledge again because she came to the door the first time they could have said ma'am would you come to the door also we'd like to just check make sure you know everybody's ok there are other people in the apartment they could talk to them nobody with throwing them off that landing and  the idea that they could rush into the apartment over the objection of the owner of the apartment or the renter of the apartment under the community caretaker exception is not supported by the case line anyway when you're speaking of apartment one factual issue that confuses me is that like a house with multiple families two family three family house that's typical and yeah it's a two family there's a bottom and there's a top and so his a big apartment house with twenty earth now you're right and that and his entrance from the outside is from a landing that is outside and you'll see that in the photographs i think exhibit ten is the are the diagrams of the apartment exhibit twenty seven has the landing and there are a couple other exhibits that actually are photographs of the apartment both the outside and the inside the other contested issue affect the on the entry is the whole excessive use of force as i mentioned there's a big debate about where the tasing actually occurred in the course that matters as to whether it's appropriate and there's a huge debate about whether it's ever right to do a twenty one second trigger pull i mean the record is very clear that a five second trigger pull is what's recommended and you're supposed to assess if you look at the trays or training materials that we've got in the record supposed by lynch and by smith who were both deposed and the lynch and smith said well we trained them that they're supposed to know that when you pull the trigger it's still it's still energizing and then you have the noise which is pretty distinctive and then you have the effect on the subject who is curling up and you can see visibly that he's rigid and that he's foaming at the mouth to the point as i say were even to put it in a civilian in the room calls the police on the police so the idea that they didn't know may be true but it's not a reasonable mistake i mean it's one thing i've turned down cases where an officers in  rapidly evolving situation he goes to shoot the suspect and he hits a bit and he hits as you know a bystander that's a reasonable mistake you've done the best you can you're trying to stop the robbery you screw up and you hit a bystander that's a mistake that i can't sue over but a mistake where you're doing something you're trained not to do for longer than you're supposed to be doing it twenty one seconds and then remember that after that twenty one second trigger pull he does a energizing  additional five seconds by pressing the cartridge against the back which sends the energy around the whole torso they knew exactly what they were doing and they were using way too much electricity on this individual and it as you see caused dramatic injury i mean he's mentally incapacitated used to be a really great artist and a stone cutter and now he plays with g i joes and needs help getting dressed i mean this is exactly what these officers were warned against when they were trained that you can cause major disruptions to the breathing and to the organs if you overdo it and they were told the fifteen seconds is overdoing it so let's say for some reason they go past the five they go past the ten then they go past the fifteen they're up to twenty one day are killing him and it's not a reasonable mistake for for them to claim that twenty one seconds it's and the fact that the taser was was going to go and using collins were there with enough time to stop they were right there at the body trying to get him cuffed they experience the rigidity they should have page but i think i walked those training officers through all the stuff that happens and what how you're supposed to do it and the training slides from the power point that taser international sends out are on the record so as to some of the officers we understand that some of this case is going to go bad for a trial but as to some of the officers in particular collins i own obligation to raise that issue because collins testimony was he heard he heard the pop and when the taser goes off there is a pop that doesn't tell you if the taser actually is in contact with something and the officers husing so devoted we didn't know if it may contradict it will they knew when they saw mr nigh on the quiet and well sotto has testified that he did not know that there was actually contact with both barb until soto came into contact with one of the wires it's not unusual when the that says this his condition was not related to the taser at all but the officers have sit i mean the foaming at the mouth and the falling down and the convulsions just happen to happen at the same time that the taser was deployed in the air we've submitted we submitted medical evidence to that point but your question is do factual issues preclude finding a for any of the defendants in good faith immunity that's what i'm asking the court i would like you to look at collins who said he heard the pop go off he there's nothing in his deposition that says that it was continuing to go it took him twenty to twenty five seconds to get up the steps and get there and he uses testified that he did not know whether there was any contact or not hew started took him thirty seconds to get to the plaintiff so in some of the defendants yes i contend that their testimony specially collins and i think hughes also should entitle them on the facts that the trial what they're both doing is in this confined spaces each of them is trying to take an arm back and they're saying that they're not watching to see what somebody else is doing because they all felt that there was resistance so what what is knew when collins came in but that all three of them isn't the testimony agreed among all three of them that they were all three ordering him to put his hands behind his back and they still did not have they all felt that there was resistance but as to college they were they are and they were participating if they felt there was resistance didn't your opposing counsel give us deposition citations that  cannot alter deposition testimony to the expedient of filing i subsequent affidavit you would agree with me on that would you not agree but a lot of times what happens in the deposition is you're not going to ask the question of why did this happen wh more information in the depositions him self but i would ask the court to look at both husing collins and any particular commons there's just no basis to hold him in this case and my obligation is if i is to raise that issue to try and get him