question was objective plea reasonable under the totality of the circumstances that he was faced with and to his conduct was objective plea reasonable in light of clearly established law as of january twenty ninth two thousand and fourteen as you are there was there was no indication was there that any kind of a crime much less a significant or serious crime was about to take place was there it as words a serious on january twenty ninth two thousand and fourteen a resident in the park lane subdivision called in because there was a man and nearly neck him and outside yelling for help creating a disturbance but but the report wasn't there's a man here needing help right now not enough that there's a man who's about to break in somewhere or hurt somebody that is correct or not that is not like him he was outside yelling at the top of his lungs in the middle of the night between three and four am causing a disturbance and he was frightening the resident were gregor immediately thought he was intoxicated on some form substance to prevent cynics had had arrived just a couple of minutes after mcgregor here's a mcgregor negotiating with mr samples he also hears a mr sample speaking in mutely thinks that this man is intoxicated on some form or substance as well deputy mcgregor continued trying to negotiate with samples because samples kept walking away from him and samples was walking towards a r minute to retrench and pond was six hundred feet away right yes and it drew two football fields away show how was there any indication that that's where he was headed that that mcgregor's that that was in his statement that he kept walking when he walked away from him he kept walking towards that retention pond so that was to dump the mcgregor started that's where he was going to immerse himself in this retention pond that's pretty that's pretty speculative to two football fields and one i don't make sense to me without anything between your client and the retention pond a house or a car and one point when mr samples kept telling to a bank deputy mcgregor scott commands to stop walking away and get into the patrol vehicle deputy mcgregor then drove his patrol vehicle in front of samples mcgregor then goes to try to act for him mr samples to put him into the patrol vehicle he grasped most both to mr samples orms and that's in excess witnessing all of this he's standing right over here  video however this is after death your group handcuffs mr samples after he's been tasered he runs back to the patrol vehicle i remember statoil it on so you see thirty seconds of what happened before but you do not see the  when i took the fighting stance erm well debbie mcgregor said that he pushed off from samples at that point because he thought samples was going to attack him so i'm assuming they were really close not too far away and deputizing needs to stand right behind presents no threat to anyone even to himself at that point they they also rather than using physical force a six foot off the tube to restrain this five foot three man the easy way to do that the man had been seen out amidst a bunch of mailboxes outside a group of of of homes just suspiciously lowering around smoking a cigarette the officers thought he was maybe getting ready to break into a dwelling he actually did enter that dwelling and it turned out it was his own but the officers had no way of knowing that but there was every every says reasonable suspicion and that if there was some kind of a serious crime about to be committed whether it was a burglary or a right robbery or vandalism or or or so or something else and here you have nothing none of those none of those facts well i would disagree because it would be the perception of what th officers were faced with and whether they feared for their safety or even the threat assessment that they reasonably created for their safety yes yes your honor and definitely gregor made it clear that he thought that mr samples he was clearly intoxicated and it's close there's a risk there and a significant one and they circumstances that he has a weapon he had a gun in his pocket or is waistband whatever none of that's here so i don't see any possible risk that's also other was seated clearly not trying to flee and was clearly our own and the command that he felt about it was to get off the chair and get on to the ground and he was and that officer used  was with the words he's close to the officer question officers was the question is not so much use of any force whatsoever it's use of excessive force and the question is whether a reasonable officer would have used some other kind of constraints that she's obviously for a man doesn't have a weapon greg grabbing him and covering him or are pushing him to the ground in some way rather than using a taser well what a lot of the courts of unreasonable excessive force both in pratt me here is county texas and gather the city of san antonio there was a individual causing a disturbance that was that drugs were found in his system as well and in both of those cases an excessive use of force because they were resisting and here we have the fact that samples actively resisted mcgregor's apprehension of him mr sample spam to a bank so for those reasons feels that his that his conduct in taking him to gain control of mr samples was reasonable there was no further contact that that deputy had similar with mr it was only that one incident  after that when he fell to the ground he fell on his backside both deputies testified to that and mcgregor was the one who handcuffed him no more contact from geoffrey that  sample of breaking free from officer mcgregor's grasp which kind of is what happened i thought i thought i think if i could just i think i'll just call it was the defendant because i did hear his surname pronounced till today either  but the defendant made the statement oh mr samples was exhibiting on usual strength despite his small stature by pulling away from officer mcgregor and that was kind of both strange as reasonable fear of injury from mr samples or something but what deputy mcgregor says as when when mr sample pulled away from him he backed off the phrase he used this to create distance and so mr it's a deputy mcgregor it creating kind of this is owen of distance between him and mr samples so it doesn't get any worse is not mr samples being hercules and throwing the officer you know off his off his body or whatever now the the other i think important factual particular about their houses i think there has been an attempt made in the briefing to to show a refusal to obey lawful coming hands and that you know he wasn't being arrested for something exactly but i want to ask the court to think about you know our side whole case it was us against carol franco didn't have anything to do with excessive force but it had this elegant definition of arrest that arrest is an understanding between the officer and the citizen citizen but not go anywhere and that he is he is subject to the use of force to compel compliance with lawful commands and so i think the court should consider this is understanding between officer and citizen if the citizen is exposed to some risk of force there shouldn't there be some communication from the officer that creates that understanding that you are being you are being commanded to behave in a certain way and there are consequences to disobeying those commands weren't watching what wasn't he commanded to stop i'm not seeing commands your honor i think now they defendant says oh well deputy mcgregor was issuing him some commands that he didn't obey but here's what deputy mcgregor says and i was kind of throw out some page references the biggest my favorite one his affidavit page one for the record i tried several times to commit to convince mr samples to get in my car and he says it in his internal not interoperate internal  affairs report mr deputy mcgregor tells him mr samples i told him he could call his sister once he got to my core i tried to get him in the car was warm to tell him to get in there was warm and he kept repeating he wanted to call his sister that's page one thirty six one forty nine page one fifty of the record again ask mr samples to stop and get my car he said something about a nearby friend offered to take him there and ask him to get in my sample supposed to have if not i'll do what i'm told i could get hurt here and so bearing in mind it's all now now i'm trying to circle back eloquently just kind of the legal structure of all of the the clearly established law now it's going to be weird because the plaintiff lost this one but this court did say in williams against city of cleveland you know those taser cases where we have rejected qualified immunity for officers the person attempting was not attempting to the person tase was not attempting to flee and and so that's the one i hear mark for it in under the clearly established law question if he was not running away from it and you tase him the law is clearly established that there is an exposure to liability i thought he was trying to get away he was going opposite direction away from the office now i think i think there's other fact issue territory too i don't remember say my saying he was running away he re the he got away from dr from from deputy mcgregor and the defendant says he didn't assume they fighting stance it wasn't going anywhere i think he was just standing there and using the court was not really my primary purpose but i talked about you know standing with with his dentures in his fist  and so that was his fighting stance but what about what about the evidence that indicated he was whether he was walking or running i don't know toward the rich and upon that would have been away from the officers i was i'm glad you're gonna mention this first it was two football fields worth of retention pond away with patrol at least to start out with a deputy mcgregor had his patrol car between mr samples and this six hundred yards of street that i think i think street dead ended into their several feet now section of your six hundred feet i'm sorry to two hundred yards two football fields not counting in zones and so yes that's a long ways and besides which i mean i think is this maybe sounds more like a technical point human against a good drink which is which is not about a man in his underwear i can't find another one with a man in his boxer shorts one hundred fifty six batman is boxer shorts but newman against guidry was another one  said this is my favorite because i think it has my favorite sentence of the jurisprudence on the subject which is the officers theory that they were trying to prevent serious injury or death through themselves is severely over officer but they talk about that and i think that's where they kind of narrowed down and talked about taser cases and i mentioned that williams case it says law is clearly established a somebody that's not fleeing wrist then you can be exposed to liability and i do want to make a i want to remind the court we're really talking we have two analyses going on at the same time one of them is where do we put this case on the spectrum or yardstick some of the of of force cases is it one of those where we can tell the officers and there's a big swath of the it what you call the fighting stance but then one of the officers one of the other of you told the e m s people he wasn't being combative and i know we kind of exchanged some fire in that and in our briefs you know m break into the break the window to get into it in the home of a report of criminal mischief but they may be part of the rich or the down side of talking about how factually intensive these cases or is trying to separate them all mentally they do all kind of run together i think people most trade of so well that the facts that are important it seems to me in comparing with the carol case are not so much what happened beforehand or whether it was his home or whatever that he was seated and the officers were telling him to get down on the on the floor and he refused to do that and he was switched taste so it's at that that that's at least close enough that that we can talk about comparing it to your just say if we can say yes and another stay and there's something between has he will consensual conversation and arrest and there's investigat moral footnote is the other procedural issue is about we are here on a summary judgment and the question becomes not only where do we put this all the spectrum of cases but can we put it there you know if we put push pan on the ruler here we put it there as a matter of law because a reasonable jury could not disagree with the proposition that mr sanders is if used to carry out lawful commands that you think your honor and and maybe this supreme court case toland against somebody from a couple of years ago all of us was cut loose to tell us you may remember justice alito expressing how bored he was with participating in that case commanded and i said something smart alec about my private parts or something while mr guidry was shaking me down and got tasered over it and i think the examples they are well are but that teaches us is this all get summary judgments on them and we've evolved and we don't you know we don't look at it that simplistically anymore but that the law used to be that maybe there was some reason why the law was that you have a case that says that the officer would be required to try to that where where they are there needs to be a proportional escalation of the relationship between the officer and the citizen and again that's part of that before you get to the arrest understanding and you can shoot the guy you know if you want to if he's running away from you or something like that there there needs to be some sort of process to get from not using force on somebody to to b entitle to taste them and so i think and i think that's you know that's what that's where we are i keep our sense a summary judgment of course i want to say fact issued like twenty times today and part of that is ok how do we know it's a matter of law was he refusing lawful commands and i'm saying well you know if you read the language of what deafening mcgregor was was telling him they don't sound like commands they sound like suggestions it doesn't sound like deputy mcgregor was really interested in arresting mr samples for anything so just sucks summarize for us what you say the obligated to obey because he was getting arrested or so if there was some sort of investigative thing going on that entitled deputy mcgregor to tell mr samples go get in my car no he was not combat if he just wanted to call his sister but sure sounds like that the mcgregor talking as opposed to he adopted a fighting stance was kind of implies he was going to fight somebody or take a swing at somebody with those dentures you know that whatever was going to happen that there was some potential for tension for combat that might ensue that was tasering him was putting a stop to it and if the answer you asked about whether he had a case should does the officer have the right to physically restrain someone like samples there is a case and it's called stanley the city of baytown versus stanley the city of baytown  the southern district texas houston division and what that case is it's not the community care taking function so long portsmouth officers not at no five law enforcement officers not only investigate crimes but also perform community caretaking functions which are totally divorced from the texan investigation or acquisition of evidence relating to the violation of criminal statute community care taking functions include stopping or seizing a citizen for his own safety and or the safety of others regardless of the officer suspicion of criminal activity or lack thereof so these officers even if they didn't have probable cause to make an arrest are slim like he was breaking in somewhere under the community care taking function these officers had a right to seize him and put him in the patrol vehicle but we also have case law that says the possibility of incident or harm it's kind of escalates in terms of what kind of force can be can be used i mean here the taser is at the more extreme end of the kind of force that was used but there is kind of a sliding scale in terms of what the person is he's up to yes and that even fits within the community caretaking that doesn't fit with it well in that case he actually went into the not so far away that their attention well we don't know at what point or gregor said it was six hundred feet away we don't know if he continued to walk and how far he was how far he got close how close he got to the retention pond at one point up to a greater moose his car or closer to the retention pond to try to block samples from going to the retention pond so we don't know at what point they were with at the very first point that they