that date is incredibly important for qualified immunity purposes because that the date that the appalachian michaud that the law was clearly established with respect to the tasing of an individual under the facts and circumstances present on to the three individuals to tell them to stay out of the road recognize the one of the individuals as a minor at that point he stops gets out of the vehicle and orders all three individuals to go to his car and put his hand put their hand show their hands it's undisputed that the purpose in doing that is the purpose of the officer having the three individuals collected in one location with their hands visible is because that's a safety concern the officer in front of him in order to get him to stop walking away from him and that moment on the taser video when the video picks up you can hear the dispatcher saying that officer singleton is out with a black male who is refusing to stop up so it must necessarily means that the officer has already instructed mr thompson to stop he's refused to stop and the officer has radio or i'm sorry the case law that i've looked at i believe they were shooting or shooting cases where a firearm was involved and the court has held that you know where feasible a warning should be given but that the president of the  far arm with repeated warnings doesn't some in some instances constitute the warning that the person that the firearm was pointed at is it even with the video is there a dispute would there be a reasonable dispute as to whether he could it was there was a long enough pause that he could see that there was a taser aimed at him yes john i believe if i understand your question correctly that there might be a question of fact about that no i believe mr t real relatively slow back toward the officer with i think it's his right hand sort of not visible not completely visible his left hand kind of sweeps around but not enough threatening manner at least i didn't think so and stores points in the other direction not at the officer and he gets teased with no further warnings ever right well your honor i respectfully disagree that there wasn't any comply with the order the lawful order to walk back to the vehicle you can't tase him though just because he doesn't comply with that order can you with officer had a safety concern at that point for him as well as the others that gentleman is in the street he's intoxicated  walking in the street and again there's no dispute that it's a safety concern for all three of them to be back at the vehicle so that the officer can do what he needs to do to finish up the stop in addition to that officer singleton that testified that you know he was confronting me i guy he was it was a bullet he interpreted as an aggressive move when he turned around to confront him and say hey man you know what and that is when the officer pulled the trigger  didn't step forward diddy we're talking about kind of a pivoting and pointing to the back there wasn't a there wasn't as if i remember the video correctly there wasn't a step forward i don't believe the record reflects that there's that part you would be able to see it on  video because i don't believe you can see their feet but from the upper body mr thompson they're very very close quarters he's been non compliant he's not been doing as he was ordered to do the officer wants them there for safety have kept walking and said hey you know officer my house is right over there and i think that turning around and physically confronting the officer makes it just a little bit different other than turning around what makes it a  told him to stop show and go to my car he's not doing that and in turning around and confronting him i believe that was indicative that you know he's going to he's going to do what he wants to do it didn't you just said though that there was a period of of compliance right you just said he told him to walk back to the car show me her hands and i thought you had just said that that's what he did correct your honor and i mean he there was a small period of compliance but it was very short lived  and i think that that is further indicative that he you know what little compliance that we got out of mr thompson in him turning around and confronting the officer about want to didn't want to go to his home versus going to the car so that the officer can do a meeting today i think that is a confrontation and it's an aggressive made to move towards the officer and indicative that he's not going to be compliant and longer is not compliant in that moment because he wasn't told to turn around face me talk to me he was told right place with clearly established in that issue and then went nowhere with it the our jurisprudence in the last five years has made tasing kind of a special subset of excessive force jur that didn't exist in december two thousand and ten i don't disagree just looking at that and so we have brown we know we know from brown it was clearly established that a nonviolent misdemeanor  can't be taste or shouldn't be taste that's that's excessive force or was it i suppose this this this taser was it was in stun mode or no it was understands and i don't disagree with that that's i don't i don't know where i don't know where but clearly established the supreme court's repeated reminders about doing clearly established law carefully i don't know where that takes me except i know the district court didn't do it right correct and that is our argument on appeal that the district court defined clearly established at a high level using a high level of generality and th mode on a force continuum and with all of that the discussion we've had this morning about how marginal the safety risk was well why should nds on force we have there are non lethal options hands on force pepper spray and hazing those are usually kind of the big three as far as non lethal force goes back in two thousand and ten where tasing fell on that use of force continuum i don't think that that was clearly established i've got a single officer in the street with three individuals one who's walking this way to you who are over here he wants them all together so that he can be assured of his own safety and that this gentleman is not continuing to walk in the street holly intoxicated i think is maybe the alternative in twenty twenty hindsight would have been you know putting his hands on the man and potentially engaging him in physical conflict and then you've got one officer fighting hands on with an individual with you under individuals who can no longer be monitored watched you could come to say i think it opens a can of worms no it's almost second guessing and these are fast moving situations but how about a step back and a couple of commands before firing i think at that point the officer had given his command and again basically ya know what we have here we have a situation where mr sheldon thompson was trying to get home on this particular night which happens to be his birthday gift of the twelfth two thousand and ten was walking ahead of these two younger guys and the police officer and his state he said that the reason why he wanted to stop these individual because he wanted to determine the age of this young man he saw that so i guess my point is this if the officer was so concerned about the under age of the youth when he stopped is under age to use he going to get let allow mr thompson the gone about his business gone about his way but then what happened he has of course the is not is at least somewhat distinguishable from brown well for this case then i would i would argue that this case is really more if there was it was greed just if there was a legitimate reasonable perception concerns and not knowing where his right hand was and that sort of thing yeah it the officer claims that mr thompson right hand was in his pocket which is not the case mr townson hand was down to it by at no time when when m the question is did the officer testify about having some safety concerns yet i think the off the safety concern was he wanted all three people back at the car at the same time because mr thompson had was was about four or five feet ahead of the other two gentlem n who were behind him and so he said that he in order to ascertain whether or not this young man without all curfew he wanted to get them all back together i mean call me see if i can get in my car you'd said that the officer testified that he taste him because he wasn't following instructions yes and i think the classroom i think the question is did he also testify at all about any safety concerns and more specifically as your client turned around and faced him he wrote in his police report that mock client turned around in the grass of manner which the videotape disputes that the videotape does not support th t and the officer after they also got back to the police station and drafted up his narrative heat he put in his report that he felt threatened well there was no there was no reason for that and you can clearly see on the videotape turning around as judge kelly mentioned it was a slope and i think you also mentioned judge brown that it with a slow manner in which he was turning around and he wasn't pointing at the officer would have left and he was pointing at his house trying to tell these off so that he was all that hi where he turned around the store walking back to his car until the time he was takes and when he when mr when mr thompson began to turn around to try to explain to where where his house was and i asked  record reflect whether singleton was told before the tasing the youngsters that we were were just making sure the old guy got home safely yes yana that that's that's what happened was it's possible that that that they told him that i'm not i can't remember that and i may not be in the record right it was my on the stand it was my understanding and i think there was an affidavit to that effect but it was my i think they told him that after the after mr clearly established issue how much was that discussed at the district court it doesn't seem to be addressed in great deal in the district court's opinion or in the briefing below at the district court was that argued outrageous six egregious use of taste so you extra excessive use of force in this particular case here you have a gentleman that he's walking home trying to get home and he simply turns around to try to address the officer and rather than he also warned this guy tell him to stop what he's doing the off the taser and there was no excuse for that and the officer is clearly her own take he didn't mention to his partner that he felt threatened he did mention to his partner the guy had his hands in his pocket the tape the video tape really tells the whole story now he want to try to go back to and try to doctor it up and put in his report that he felt threatened and all that and also the incident happened right in front mock line because he stop doing what he told them to do and that you cannot do and that's what the law of the city versus i brown versus the city of golden valley clearly