this appeal because we think this case involves some important issues related to the application of qualified immunity to officers in the field in particular their ability their right and their duty to rely on information in the follow orders from other officers or serving as that relates to the use of physical force for some background and context i first want to touch on the district court's opinion which we believe got us here today we think that the district court now resigned judge kevin sharpe respectfully got a couple of things wrong and also respectfully on his way out of office this is suppositional my part but i think that perhaps in judge sharp's haste to pratt's to wrap cases up and get off the bench there were a couple of errors with the opinion that addressed our motion for summary judgment that i think were significant first we contend that judge sharp used the wrong standard in analyzing the qualified immunity defense in this case he walked at this case and ruled on the basis of what the earth the perspective of what a reasonable jury could find i think it's well established in the circuit and we can all agree that that is the not that is not the proper standard that issue was addressed by this court judge rogers writing for the court judge batchelder part of the opinion in stefan v any decision from january nineteenth of last year in which you all addressed very very similar set of circumstances that was a use of force case but you found that the eastern district of michigan in that case like the district court here in this case the middle district misapplied the three gra factors and rather than looking at it from the perspective of what was objective lee reasonable for an officer under the particular circumstances involving the office or the district court in stefan look at it from perspective of what a reasonable jury would do it isn't it doesn't that conflate the two inquiries one is a factual inquiry as to what actually happened i disagree i know the plaintiffs have argued that there should not be jurisdiction and in this case on the basis of of a factual dispute but i'd like to first let me if i can address and answer my question no i'll be happy to answer your question weston isn't there a difference between in essence you have to do both you have to figure out whether there are the facts which would amount to an unobjective from the perspective of the policeman that's in the facts that that a jury then has to find and so at the summary judgment stage th district court has to determine whether a reasonable juror could complete it could conclude that the objective facts from the perspective of the policeman were thus and such well so i've won eight you know at some point when deciding a summary judgment motion the district court has to decide something on the nature of would a reasonable juror be able to come to this conclusion and but the nature of the conclusion is what you're talking about and what we were talking about in that previous case i just wonder whether it's a it's in a it's an argument that sort of misses if you say that the district court should have used language like the reasonable juror could conclude well see what i'm saying yes i do and i think your point was that the analysis process can get somewhat conflated i think on i'm not saying there conflated i'm saying there are distinct one is what could that what one is what is the standard or what is the fact the jury supposed to be looking for and the other is could a reasonable juror find that fact those i'm not conflating anything those are different right one deals with the other why can't we interpret what the district court said is a distinguished judge he's gone but well i don't exactly that respectfully disagree with the with the district court's interpretation of record that was before him that is talk but that's not according to our present something we review this is to review unless there's a video comp video tape or something like that we defer to the district court's determination of what a reasonable juror could conclude as fact in this case i don't i don't disagree with the judge but a hard to disagree with that because i thought i think well yes it is but i think that the issue here is that the district court in this case did not properly take into account the perspective of the view of the reasonable officer  one issue that the district court did not take into account that is not disputed in this case and it goes to the other problem of the qualified immunity analysis in that there has been no case law that was presented at the district court stage for now on the appeal that establishes that we say even gets to the point of creating a legal issue to argue about in terms of what clearly established wall existed at the time back in october of twenty thirteen when this all as police obstacle not use excessive force that's correct but the reason what is undisputed in the record in this case judge is that the reason the force was eventually use is because of the involvement of another officer who was not sued the record in this case shows beyond dispute this is been admitted to that the backup officer that came in in response to this call his name is was standing at the back of the patrol car observing the interaction between officer god be my client and miss williams as soon as she got out of the car now i recognize and i'll concede that this william says one thing officer god b says another thing what the reason that the force was used in this case is because shewn gave a command and gave an order to quote take her to the ground and that initiated the process of the physical force being applied in this case that led to her physically going to the ground and her injuring her shoulder client protests of pain and taking her to the ground he did participate in it and we say that it's qualified immunity purposes we submit is whether it was reasonable under these circumstances and his miss williams demonstrated through her arguments any case law that would show that it was unreasonable for officer  godby to follow the command and to react to the order of the other officer on the scene to take her to the ground it is undisputed in the other officer on the scene had said she's got a tiny bottle shooter that's different i understand that i think that the jury could take you all potentially could rule as a matter of law under the if those are the undisputed facts from from certainly from the perspective of safety and the idea of an officer following a command that appears to be plainly unreasonable again though they have to come forward with the case to suggest that and we argue that under the particularized facts of this case they have not met that burden they have not come close to that and this raises some serious questions under these facts as to what duty and what responsibility an officer in god peace position should be come forward with the case which they have not done they did not come close to doing that at the summary judgment stage at best in their brief in response to my motion all the other questions that just  month mistaken at the time he was a superior officer and that's my question terms of rank and he was called for backup he responded to that call and pursuit of their training under these circumstances where you have certain there should be no dispute that she was resisting verbal e actively from about the point in time that should that god be got there it's undisputed that she was intoxicated blot out the whole point one five nine was there observing these actions sheen's first initial concern was what actions were the group was the driver going to take he couldn't even determine if the driver was male or female the driver is a much larger person that what miss williams was and as he's standing at the back of the core he sees the interaction and sheen says he saw a miss miss williams start to react and start to pull away and start to resist and that's what prompted his command where your time is short about what you're arguing you seem to be arguing primarily today that there's no cases which say that one officer can in certain circumstances decline to do w another officer tells him to do right under that's the r g s you know and when you get up on rebuttal if you could just point to the pages of your brief where you're making that that's a little argument the cup out about being told by someone else not a statement of facts but in the argument secondly you have another claim here which is false imprisonment claim under tennessee state law are you arguing qualified immunity federal qualified immunity are you arguing state immunity state law i mean it i mean i think our argument is postured more under federal qualified immunity so you're not making an argument based on state i don't think that we personally or you'd i think we may is not i don't want any i don't know whether you're arguing it or whether you're not though we're arguing qualified immunity for a fight immunity so if there's some case which says there's no qualified immunity for state law claims he would just lose all right if i could check my brief and address that on the bottle before i commit to that thank you up and i didn't understand that was from the depositions from the record that that was the only reason that ms williams was taken into her collarbone broken what's helps us in this case is the eleven minute audiotape officer god his video was not focused but the audio is for eleven minutes he interrogating questions ms williams in the person the driver's seat was loving over soon was there less than two minutes when this takedown already on the passenger side of the vehicle talking to miss williams and miss williams was compliant we dispute and i think for the purposes of this iraq to appeal it can't be contested that she resisted arres she was compliant to the appellant moves to argue that she was out of control that she was obviously intoxicated and we dispute that and we believe that the audio in the video supports the fact that she was coherent at the district court say about whether there was enough for a jury to find one way or other the the district court found that there was a jury question that there was enough for a jury finds that were bound by their terminations correct  submit to the court that the in rebuttal to the argument presented that she was the she resisted that she was always intoxicated they like to point out her blood alcohol test but of course that time that was determined later she was able to answer questions and she didn't resist so in the video the audio shows that when she was asked to get out the car she complied when she was asked to hand her telephone over she complied when she was asked to turn stresses of their job they were relaxing this morning to them after working eleven hours was like a friday night to a lot of people the officer godby had no reason to exercise the undo the excessive force on her when she got the evil because she complied the court and was the graham factors the court and as this court has pointed out the issue of whether there are questions of fact when the summary judgment the district court properly analyze those and they're intertwined but there are those questions of fact which the court properly ruled upon and we submit that the court properly ruled after considering all of the ground that type of force to take down a person and break their collar bone when they have not committed a crime we think that is clearly established law in two thousand and thirteen it's important i would submit to this court that officer testimony is that he asked her to put her hands behind her back which she complied and when he went to put the cuffs on her he was not doing it because he was going to arrest her his testimony was that he put the could he was going to put the cuffs on her so he could search the core looking for whatever he was looking for for his own safety he never communicated that to miss we never communicated community to do that to her and we would submit that he owned his own regard to that the appellate made that she was resisting and assaulting and again taking the facts that she gives them the only time she kicked was when they were laying on top of her to that point even the immunity is not available to be under this set of facts and then we did police courts them in several cases in our brief were guarding the clearly established law and again to the point that it the stephan vs hunting case and we believe that's clearly distinguishable there or or seven important factual to distinguish his distinguishment in that case and probably the most important this is where the case occurred at the top one though that judge rogers authored the biggest facts in that case that we would show our distinguishable or number one the paramedics already knew about the plaintiff in that case they'd already had issues with her and her seizures and number case ms williams did none of those things in fact we were spokesmen audio and video shows that she complied complied complied answered his questions she wasn't excited about being interrogated by the police officer was a little worried about how would you couple points judge orders in response to your question about officer shewn and his involvement that was touched on i know i'm page fourteen of our leading brief page fifteen and seventeen of the reply brief look on the green that's page fourteen yes your argument or is that it's part of the factual section i was not really make that that's your key legal argument and it's not made in your argument section right i'd apologize as i was slipping through the rest of my brief i did not provide i could not find the cite that i was looking for is referenced in the reply brief though it fifteen seventeen at pages fifteen and seventeen a couple points to follow up on from mr fay and i also asked you the state immunity yes or you don't are you state immunity no we argued federal new unity we can argue a state correctly referenced some common law state immunity cases but it was tied to the federal qualified immunity analysis thank you appreciate it yes i think it's important to know that there was a in the stablish when a probable cause for the three charges that she was arrested for which was public intoxication resisting arrest and assault  motion to suppress the evidence which was the alcoholic bottles but i think it's important to note for will two points rule for qualified immunity the standard under tennessee law for seizure is different than that under federal law and i think that raises a question as to whether or not an officer and god be specific and should be expected to know that and again also the establishment of probable calls on those three those three charges two final points one we submitted the extensive responses to our statements of undisputed material facts many of which are were admitted there is no question that this lady was extremely upset agitated her friend told her repeatedly shown come down let him do his job hit her mother at the end of this whole proceeding came out  enough force and violence to break or hurt well judge again i go back to the idea of these particular allies facts putting in the involvement of officer shewn with the command to take her to the ground respectfully we haven't found the case that says that so we make the argument that under these facts the wall was not so clearly established they didn't come forward with the case we researched this heavily i can't find a case it's directly on point but i think that means qualified immunity