in the court's findings the court found that mr hurd collapsed to his knees in pain officer do lobbying how do you say it the right of july of then jumped on mr hur resisting even though mr hurd was disabled on the ground don't we have to take those facts as found for purposes of assessing whether this was objective lee reasonable under the th amendment after he fell to the ground when you watch t v b o i mean he is on his knees at that point we can we look at that separately in terms of the decision to take him to the ground further from his ruling i guess being that nothing it heard or considered in summary judgment changed its near the facts but the court at least viewed that as very aggressive and on necessary what happened after he fell to his knees what are we free to revaluate that with yes because i did that i think the video shows that when he goes to his knees it's all of quickly happening in one get them under control so yes that was not also what happened after the taser especially the forcing his face into the ground and i understand your your your argument that that was the other officer but the parties in the briefing to us seem to focus on the tasing so can you tell us is there one excessive force issue before this court are there two that the district court addressed both of them should we how do we how do  don't reserve the remaining time and i just ask one other question about clearly established if we agree with you that the law was not clearly established is there any reason for us to address the st prong of morning may please the court my name is erica grossman i represent greg heard this entire appeal amounts to an improper challenge to the district court's actual findings which wants to jurisdictional limitations set up based on who i call had immunity and submitted the video evidence or the video evidence as dispositive the court rejected that looked at the video evidence which captured a portion of the tasing and then said that based on what he saw in the video and a reasonable interpretation and playing a favor that there will be no he why because it would be a constitutional violation he also noted that video really captures everything and then in a summary judgment motion referred that the defen said video go that iau can only be seen one way that you can't be subject to any different interpretation and therefore you win again court said no i've already talked about that video could be seen both ways and viewing the light most he had to do and looking at the evidence before him additionally on summary judgment in which he said he looked at the evidence and form the response or apply and then if you evidence and again denied qualified defendant's argument that he didn't make the required findings making a very long paragraph about all the findings he made showing the three to four pages of the factual findings about the video and and then then said therefore he finds the  exception where he didn't make findings to johnson inappropriate and part of those findings was that her did not appear to be aggressive he showed the op with her head and the handle asking permission to come out he began to crawl out of his hands and knees and told to crawl out from behind the bushes he then he wouldn't rushing or dancing on the opposite he was use a tree to pull up to a standing position his hands were by his side and that a black president non threatening manner that his facial expression was non threatening and he said importantly here that he was not rapidly advancing the words he used or running a rushing like rapidly advancing at the officer he wasn't saying no to commands but instead under plaintiff's reasonable interpretation he was saying no no no listen they did not to be paid and saying don't tase me man after officer july it had just said on video out quote i'll fucking paid you and and also finding that i just bring you back to the jurisdictional choice you are making nationally why wouldn't we have jurisdiction to review whether a jury could find a constitutional violation based on was saying no to commands or rapidly advancing as they do which does not accept his findings but on the findings of what he said which is that is is it clearly established that a suspect like mr hurd could not be tave into the ground and sat on given that he was not armed was not reaching for a weapon was not fleeing made no verbal or physical threat was trying to comply was not given time to comply with multiple conflicting commands in the span of second so i'm now i'm confused so you're saying we have jurisdiction to review the video the nobel and make our own determination of whether a reasonable jury could conclude that there was a violation of so and these findings are not let me contradicted their well supported in the record and we are now four years into a factual dispute that should be left to a jury the law in this case that it's clearly established that you can't use a taser when someone is coming at the officer and and not stopping when they're ordered to stop so i would say i was in that that does possibly give the reasonable interpretation favorable to defendants because judge blackburn concluded that he wasn't coming at the opposite but rather trying to comply with the commands to come out from behind the bushes and naturally to do that you need to come out from behind the bushes and yes he the best case that i like i like a lot but i like having other stars would cross like morris versus no one of the reasons i like more sources know and defend and take issue with that case with doesn't involve a taser but it involved a less use of force involved a tackle in the flow to the ground on a person who's who was actually also where the  indications of injuries and you know if if you can't do that to you can't you the lesser amount of force if we're sure actually similar facts involving a substantial use of force with a taser unquestionably is can't be used and whether or not and what he and whether or not he's rapidly advancing a rushing aggressively as defendants claim that their interpretation that was rejected by the court because the court found him to be not threatening not running at them not advancing attempting to comply with the commands to come out from behind the bushes and not given you know a warning like in i think a recent case that we just we just supplemented at the armstrong that was decided later was decided earlier month in terms of the clearly established from that was addressed in conduct in two thousand and thirteen that was before what was happening here where it says you know what the purpose of warnings are to exact compliance and you can't simply give a warning commands could not exact imply and that principle also applies here and i will i will i want to address the this wait and see the idea that there's a way to use your standard again except defend his version of the fact that he's that officer ly was required to be and it's not a wait and see you know when he had other of the feeing because her is not doing anything that you have to do wait and see he's coming out from behind the bushes as he ordered him to do he was never threatening him after the lab has been cut in a lie saying that her threatened him saying to his superiors in the sergeant that that was the number one reason he was paved when i got the fish and all of those people said that never happened when you enhanced the audio as we did that never happened and really what you can hear he never said any substantially because the suspect in wilson was fleeing from police refused to obey several orders to stop and refused to say police have a lower risk of his hand away from his pocket and then reached into his pocket just before being ta those cases a markedly different in order to apply those cases you need to accept defendant in the state they're holding them really to get these factual findings to get this court to overturn a well supported summary judgment order now they i've seen cases in which this court reviews and say that there are no factual findings and i know that they pulled the mirror it didn't seem like there was even any were written and here you have a twenty page order about facts a seven page summary judgment or about back in the nine page order containing two or three pages about the fact that he found and i i believe the judge blackburn did his job as he generally does in making these extensive factual finding and that it was the number one reason because he knew that his conduct was iconic you can't take people that are peacefully surrendering and so we tried to make him aggressive and he was caught in that as part of the record i'd like to add that you know particularly now as what's going on here where we have this very trying compression with a suspect and still dancing on the officer so that's very different in addition to more skills is awesome also there are actually different in that case the man ha that until so are excused that concludes this morning's cases before this panel