court today are issues of a pulse of rats and excessive force not before the court today is an issue of municipal liability as the lower court did not find that there were constitutional violations on either the false arrest or the excessive force and so that has not that is not part of what we will be arguing today with three going on i want to start out with the false of grass because i think that the law is clearly established in the law and my opinion is clearly established on both issues that i want to address the false arrest one of the things that we did in our opening brief as we brought out the case doornbos from the th circuit it was a two thousand and seventeen case we brought that out you know i'm afraid that we did not make clear that even though doornbos was a two thousand and that are related or usually are when they're under cover or when it's a surprise here they've had three police cars i guess with lights blinking they were in uniform they had already taken one over the law enforcement officer and the  addressing him however if you look at that video you're going to see that it's not that clear for one thing as we outlined in our brief mr armstrong that's not parked his car directly and that you mr that it's uncontested that there were law enforcement officers around the question is whether mr emmett would have been aware that that was in that moment when mr armstrong said morgan come here or whether or not that was a law enforcement for your position is he would have known that there were lots of law enforcement officers around he would have known that somebody was arrested you have known about these cars but he did not know that the particular person that told him come here was an officer not exactly the deposition testimony of mr internet was that he did not know that mr lancaster had been arrested like him would have known exactly the test is not what he would have known the test of what august there reasonably would have known in this circumstance the officer gather some people together and we see in the video we see that mr emmett is approaching the car the truck but we never really see if it gets to the track if he turns around and walks off we don't know really what happens because the video doesn't give us that information so as you know in the video mr armstrong was there rest or at least put a person in his car who because the gentleman intoxicated didn't think it was very nice the way that mr armstrong was speaking to the group and so he was taken off away from that location around that planter that mentioned quite a bit by the opposing counsel in their arguments around to the police car that was parked over there outside that truck and then while he was over there he  other things he talked to some witnesses he ordered some people to move here and to move there and then when he finally came back around toward the pickup truck mr emmett was quite a distance away and it was night time yes there were street lights that it was night time and again we keep saying that the uniform of the officer was completely black he was wearing a fled wasn't there also in an indication to the officer that said he knew that he was an officer i mean ordinarily of just a plain person comes up with his good talk to you if you i'm glad you brought that up because it's an deputy armstrong stepped edition testimony he says that one of the reasons that he taste morgan emmett was for morgan emmett's own protection so nobody would attack him morgan emmett's testimony that he was right because he thought someone might be after him and that mr lancaster he didn't know who and so he began randi so i think that the very fact that mr armstrong himself admits that there might have been around in a completely different location if you want to if you want to surmise that he was running toward the police and away from this individual then he would have been running toward the police because he went around the south side mention of plain clothes and i think that's very important but we do have a dark hallway no idea if occasion itself and the officer was not wearing a hat with regard to the excessive force the law when the suspect poses no threat or has been subdued and further kavanaugh you may not use a taser when given no warning or chance to case there was no immediate threat and i think it's important to point that out because that comes in under graham vs connor there was no immediate threat to reasoning that there was never any chance of immediate threat if someone is on their path and their arms and legs are proof no your honor i'm not wild about their statements because in this case we see a very relaxed person this case reminds me of the case that in catalan when the door in both cases talks about now and that they found that there was after at the very end identified themselves as a law enforcement officer and additionally the doritos case itself was a man who was in the subway and it was not him that was rolled over on its back and could see who he was looking at he was aware that it was a lot of force an officer he visibly relaxed and without any amount of a whether he was subdued do you need to do you need to convince us that the records showed he was in fact subdued or do you only need to convince us that that was an outstanding genuine dispute a fact i think  absolutely absolutely and again going and i do need to take i want to take a little bit of time for rebuttal if i can thank you deputy the deputy says roll over and i don't remember that word and but he told him to roll over a couple of seconds pass and then immediately after saying roll over then he said those you're other words he's told roll over and less than two seconds later he staged don't you have to give the person apprehended an opportunity to rule over here on  react violently after being paid for this if you don't write man about it but he wouldn't have had that experience before and i'm not sure that post tasing behavior is proper legitimate evidence of a not pursuing the municipal claim against cheap brother and his official capacity i think the less said by me at this juncture the better we simply submit we believe the claims been way  confused are they simply saying they're not pursuing it on this appeal or they saying they're waving their right because if we were to if we were to reverse d and find that there wasn't a cost to the behavior here what would that do to the claim against his ability at that point do you think people waive that claim i do your honor if they don't where you fit in they don't argue it and they're all putting grief and given the concession i think they do wa me that they are pursuing the claim at all or did they simply concede we're not raising it on this appeal well since census court can affirm or reverse the decision of the lower court on any basis is supported by the record it's incumbent i believe the council for the island to brief the issues that they think need to be addressed which is why i filed a brief that addressed all of those issues as well and by failing to do that it makes it impossible for me to respond to any of their arguments i shouldn't have to wait until the case back goes back on appeal before i have a chance to argue  case it was not an error of the core to be brought before this or that because the court found there were no constitutional violations until that issue is resolved it does  simple liability it was just simply not addressed i do want to also mention in my eleven seconds countdown that armstrong brings up this issue about being grabbed by the leg as we claimed in our brief that was never ever brought up even when he was the end investigated for his job and it was brought up in this police report it is something that certainly is