this is an appeal of a denial of the opposite most him for summary judgment on the basis of qualified immunity with respect to many that the board clean and related and the palin clean for summary judgment based policy law battery clean the underlying eleven dispatcher the police located the vehicle engaged the lights and siren the driver of the vehicle then took off and let the police on a high speed chase the car would ultimately corralled into a dead end street the driver exited the vehicle immediately and laid on the ground was taken into custody without incident minor white however remains in the passenger seat of the vehicle after being approached by several officers including the felon opposite are white  erred on two important points when you're in evidence presented here st the district court judge entirely discredits the video evidence of the incident which the officers assert contradicts the pina version of the back on a key point let me interrupt here if that's the case that there's a dispute about the facts and your clients are challenging the district court's determination of which backs were adequately supported by the evidence why do we have look at the record button and what we're focusing on here is the fact that there's a video of the incident and so even though the district court judge just credited the video and said that she couldn't tell anything from the video our argument is that if you look at the video which the case was very clearly if the video that if it did not have the video contradicts the nonevent version of the facts then there is no dispute and the video trumps that if you look at that video evidence was is that all you seem to really be arguing about is a question of fact that there is no we'll get spewed about what the operative law would be it's surely fact based in which case we would not have interlocutory jurisdiction to entertain the matter at this point you could raise the summary you could raise the question of qualified immunity later after there was a trial or in the course of a trial with the district court in if you lost then you could raise qualified immunity again with the court but i think the thrust of the question is do we have honor but that's it there is only that you didn't use the found but what we're arguing here is that there can't be the you did issue the fact when the video clearly governs you're looking at a video that's called record evidence that you can look at segment of the video you can clearly see the plane is up off the ground his hands are laying about that they're not being held behind his back by the officers reception on the ground so it's not as if his testimony and his deposition was that he his hands were being restrained behind his back by the officers that they lifted him and they ha and we would not have jurisdiction to consider the denial of the motion for summary judgment it seems to me i understand your honor i would just urge the court to look compare the lying where he indicated that the officer had his hand held behind his back during the time when he was lifted off the ground to the video where you can see that it's me and are free and the case law where an officer  did that relying upon a video of the encounter and just ruled as you're asking us to do here that the video conclusively contradicted the district court of bind if i'm not mistaken i believe that the united states supreme court case in scott the harris might have been a river on that this ultimately i think i know i'm not one hundred percent sure but i think it was over review and i understand what you're i understand what the court is questioning in terms of if because if you just do a back you may not you don't have jurisdiction for a ball i do you the appeal but if that's the case if you overlay the the case law about video evidence being something that can trump a thirst and that contradicts the video evidence and the fact that you have generally no over a view of this type of appeal i think that gets you now i understand it you know if you disagree that the video does that but i think it's something you can do in some let me ask the question carol this way let's assume for the purposes of my question that the video is not  that the video is ambiguous it was too far away it was more than one hundred and fifty feet it was blocked by a couple of cars and you can't see the actual with the clarity that you would need and let's assume you were you except the plaintiffs sure of the fact to wit that he was he wasn't resisting and they picked him up and flung him to the ground again kunstler montreal was fourteen occasions and tried to show him under those circumstances with the officers be entitled to qualified immunity entitled to a summary judgment to a judgment based on qualified immunity it doesn't seem to me that you're entitled to qualified immunity now because we don't have the power to entertain  just don't believe what the video says because you're saying there would be it would just be the you didn't you know that wasn't the trust of my question began with i wanted you to assume for the purposes of my question that the video exam bake it was not that it was  r you may be right that the video is clear you would be entitled qualified immunity as soon as you could get it and you wouldn't be asked to run the gauntlet of a trial but i'm asking you if the video is ambiguous and if it's sort of clear whether the dispatcher told the offices it was in all probability of a break or four or nothing and if you accept the plaintiff's account of what happened that he didn't resist they didn't rip  assured he wasn't resisting arrest he wasn't trying to plea they had security and then they just flipped him down and punched him out you would agree under those circumstances there would be no interlocutory jurisdiction  clear like i'm simply asking if it's ambiguous if you really can answer the question from the video that's what the district judge said but if that appeared to be right what there be jurisdiction for us to jurisdiction does not exist even for the denial qualified immunity and summary judgment orders unless it is to address this question that soley on the legal and nature meeting whether that it will get in the federal constitutional right there was clearly your knowledge of what they say is that the video footage quote supports an inference that white was actively resisting and quote and that's of course a far cry from video clearly predicting what the video may or may not support an activism it equally supports the opposite conclusion and therefore summary judgment was not a problem the district court denied care when it comes to that latter part of the rd grand factor which is attempting to evade by play it's important to mention that while the away the police and actual knowledge of previous unfound to go to that restaurant with a knife a few days before and when the police showed up that they shot the person grabbed a hatchet and disobeyed i think it was twenty six dollars separate orders to put it down and then started walking towards the policeman  comply is a far cry from what we have here where there's no evidence of any weapon whatsoever and of course mr white rendition of what happened doesn't even come close to the media is then look to baker versus comments and i think that's the case that if anything does touch on the i think is really important in this court in that case made clear to acknowledge that there was also on the air when the answer asked the driver of the vehicle the ultimate point that in the in the lawsuit to step forward and step back behind the vehicle and there's a discussion there's an odor of marijuana when consent for searching the beer call was asked for the person it can to run away sprint away that is precisely what active agent by why is that is what was contemplated by the supreme court in grand forks rd factor that is why this court correctly decided bader because there was conclusive evidence on video that he ran away and active one we don't have that in this case and i just think that when you look at all three grand back because there were genuine issues in the area that the district court  now and even if it worked or if they actually speaking on the substantive merits there are simply no reason to reverse even on a been over given a less court as any other questions are like the appeal to rest my time with one final comment which is simply this the br for the initial reply brief that numerous numerous references or characterization of evidence in the record below that there was a dispatch call or a radio call that an armed robbery i will simply say this if you look at the p i believe it page fifteen of the initial group and then it appears again in the reply brief the page for the only citation authored by the accounts is to a singular paragraph paragraph two in there to respect about david's which are largely identical to those affidavits appear in the appendix one by one at age sixty seven and seventy was factually if you look at paragraph two the word radio is never mentioned the word dispatch is never mentioned police department is never mentioned actually what it says that there was a call made to the city of miami are being made this in miami is consistent with what actually happened which is that a looker passer by was related to the victims as i believe those his father made a call to the city of miami but he did not report an armed bank robbery and in fact in from the on further questioning that he was unaware whether or not there were any weapons whatsoever so i just wanted to point out that the station the old to the extent any of these arguments rest on the the factual premise information that the other that the team had was that the individual had been positively identified by and i witnessed as armed bank robbers who had immediately undertook to engage officers in a dangerous pursuit and the idea that police officers somehow have information directly from a member of the public that was called in to nine hundred and eleven and that there's no dispatch involved in between i'm not really i'm not really understanding that logic but but ok so hit the ground at that point and the video shows that their hands were loose and his feet were on the ground and that that would justify the force that was used to redirect them to the ground and