failure to intervene claims all survive after arguments on this matter we will respectfully request that this court reverse the district court's ruling on summary judgment and remand this case for further proceedings overall we believe the facts important to this case as a district court noted that to dash cameras that scan video submitted with the motion for summary judgment do not clearly support either version of the parties events and they do rule out some things i don't think they do rule out sort of kicking district court stated the dash cam video in this case while providing a spectacular view of the car chase to provide very little information about the speed arrest which is what we're here for them from the video and the evidence of this case we know factually what happened tasers twice fifteen seconds of our journey comes to the arrest there are six other deputies on scene for hands on with my client mr mcmahon the jury stomps on mr mcmahon his leg jury says he trips he goes we believe based upon those facts disputed facts this case of the kolker verse arkansas state police case is directly on point here as outlined by this court and coker and we have to plausible stories which is what we have here one from the defendant the one from the pla the there's a jury question still remains in coker out of the view of the camera the party story different the parties stories differed immensely the officer stay with us a coke case in your brood it is in  stated he only use force reasonable enough to affect you at the arrest kolker argued the force was excessive in that he was struck in the face multiple times and the flashlight and kicked the district court granted immunity to the defendant stating that the force was reasonable throughout the altercation this this court on appeal reversed leading to the jury to decide whose story is more positive this is directly what we have here the district court found the force was reasonable throughout the altercation however video this comparison is unfounded as men specifically relied on facts to create allegations that were not founded in the record and the district court specifically had to rely on the officer's accounts and on the video in question of a rd party  district court here correctly determined that man was not an appropriate case compared to mcmanaman and found the fact the video does not clearly demonstrate how much force was used and juries intent in using that force means that resolving this issue depends on  credibility judgment issues of credibility or not her that resolve a motion for summary judgment we agree with the discord on that analysis but we believe the district court called into question mr mcmahon his credibility in stating that his story was not pity him we've got two other officers they are included canine officer and then we've got to really come to the party late and going hands on with mcmanaman but here's the problem we've got we've got a high speed chase we've got up to him lead and i believe that once it's brought back once he's handcuffed to continually continues to do what he does i think that takes it out and puts it directly with you know is that he was subdued he's pinned that's it and he just continues on doing what he's doing a case that seems the closest case i believe in that case your honor the fact that there was handcuffing use i think that this case is more like the stair case the pages didn't match what was in the index ok thank you all we believe a jury question remains in this case as to the credibility of the parties and it should be for a jury to decide what happened on that night in our c v in march moot so what we're up to wef is what judge strand set forth in his rule that we have mr terry is the coming into contact with the plaintiff and whether that was not a disputed fact the judge grant took that is true as part of his ruling and then he correctly went through the law and found two points in which this court  there is no clearly established law that's beyond the bait that wat deputy chair and he did and having his knee come into contact with the plaintiff side violated a constitutional right there that context once or context repeatedly i think judge strand said several times i think there's no doubt it wasn't twenty or thirty times in fact the plaintiff has walked away from even today but the comment is not twenty or thirty times but it's awful and judge strand did that and how do we know that that it was not well i don't think that we do know that but judge strand so was that a fact most favorable to the point that she wasn't a credibility determination made by the just record in favor of your client in terms of between several times the twenty or thirty times between repeated contact and incidental contact i don't think judge and did that your honor my recollection of his ruling is that he took the facts most favorable to the place that's twenty to thirty times right i'm sorry that's twenty to thirty times by his testimony you can't the fact the fact that you can't see it the fact that you can't see the plaintiff's face is moving and the fact that the attorneys for the most part remain still except for those ten seconds i think that you can tell that twenty or thirty it most and light most favorable to the plaintiff and that deputy attorney is in the come into contact several times where the plaintiff and then he correctly applied the law  based upon the plaintiff resisting a high speed chase based upon him failing to follow commands that the force that was applied was at worst in that case the line that he was still going to be protected based upon could could return all that immunity could return to the teasing how do we know that whether the taser was i would urge the court to review the th circuit case that was cited by the running county defendants stands for the proposition that when you have a nod or litigation borne out of this case it is an abuse of discretion not to exercise the logic if you search the th circuit do they use words like ours are purely discretionary broad discretion unlimited discretion you know the kind of words that we have here and the use those kind of words i bet they're too sophisticated to do that but regardless of that i think you're different ballpark while when you look at the four factors spend more time it's certainly not a good use of resources whether it's based upon the parties or based upon the court so just from a practical review of when you have another litigation  we believe that it's an abuse of discretion for that district court not to exercise our jurisdiction and decide the state law claims when they can do so in that same ruling when everything has been  allegedly applied the taser the nd time after the individual had been handcuffed and also that all the slaughter allegedly failed to prevent an assault by deputy kerry that's been discussed here a little bit we've heard about the video we know that the video conclusively does not support either side's version of events completely has been the video shows us some facts it certainly shows us a very long high speed dynamic car chase it shows us also that a number of deputies struggled with this individual for  e well more than a minute after he was eventually taken into custody it shows that he was kicking and flailing his legs for several moments and while the deputies were engaged with him we also now know about the taser that it wasn't used five times as  legend a petition we know it was a used three times as it was stated by mr mcnamee in his deposition you know was used only twice briefly and only fifteen seconds apart for three seconds each and in fact the three seconds is actually less than the normal full five with the court's comment that the crave in our case was extremely instructive here where individual as here refused to give up his hands refused to allow himself to be handcuffed and that case i believe the taser was used on the individual some five times for the full burrs and that was not to be unreasonable or excessive circumstance the counsel mentioned a few moments ago us to refer to one of his cases that he said the some of the cases demonstrate where the stories between the parties differ deposition testimony he acknowledges that officers were instructing him to give up his hands or to give up his own he acknowledged interestingly that he was still moving while he was being handcuffed he was moving around he acknowledged that he had been arrested before that it typically only takes a few seconds for handcuffs to be applied but the greed here it took several moments d or few minutes for him to come up but most significantly for our purposes here mr mcnamee acknowledges deposition testimony that while officers were struggling to cuff him he didn't give up his left arm and his testimony his description he said i had my left arm up against my side had my left arm up against my body and in fact that's that's key here because that is entirely c credibility determination made there by the district court in favor of your client which would be contrary to our case i don't believe it was a credibility determination judge i think there to look at that question we have to look at both taser application to determine the the manner in which they occurred we know that they happened only a few seconds apart of the fifteen seconds apart we also know that this is a little bit different from some of the cases cited by counsel where he cited situations where excessive force was found when a taser was used clearly gratuitously unnecessarily but regarding a person who had not only been handcuffed but had also been subdued the judge i think that's really the case here is a possible even that that as the officers were essentially  this nd arm getting this other arm handcuffed but that's when the taser was applied so he was fully so cancer that's just a point we don't know it's possible it is possible that that occurred while he was while officers were resisting individual who refuses to give up his hands to be handcuffs a taser use can still be justified in those circumstances i think that's what we have we know that the video can't conclusively show exactly when that taser was applied a nd time so i don't think the judge is making a credibility determination so much as he was looking at all of the circumstances together the fact that the officers are still struggling the fact that the gentleman had not given up his hands i do want to just briefly address the other claim  that were occurring or were about to occur by deputy cairney and more importantly that he had the opportunity and the time to respond to that but it's clear in this case that while deputy tierney was engaged with mr dull president from this and other circuits we believe that's not excessive we believe it's a justified and reasonable from the perspective of a reasonable officer thank you officers on top of me so i don't know but what we know for sure is that the video cannot pacifically show or does not specifically show the actions of teary i bill i agree with the district court that tyranny is at least that he was need in the face multiple times by tierney and there's nothing on the video to indicate either way what the story is that many stories plausible he's got the injury the injury lasted the black guy was there he's got a  credibility determination mr mcmahon the story is possible he could have been taste twice once when he was handcuffed once when he was not that fifteen nd timeline a fifteen nd window is not dispute here but the man he's saying he was tase when he was handcuffed so that that comes down to credibility determination and that's what the district court did they essentially said does the video help with all of the tasing i can't remember that part of the deal help me on i do not believe it does especially because we have an issue with the t timeline or time that's outlined on the taser log is different than the hoodie on the top and it's not just by an hour it's completely off so i don't believe it helps at all the taser lock helps to establish that they were fifteen seconds apart that's it we can't tell in the video either when incorrect and i disagree with the at least assertion that he was handcuffed at a certain point in the video because you just cannot tell the only things you can tell when officers get off them when they start high five each other that's it you can't sell anything else and so i believe going back to one of the athletes argument on whether or not mr mcmahon it was a threat at that time when he was face a nd time i don't believe he was i think once he's handcuffed and that's done you know he gets out of the vehicle that shows that on the video he gets out of the vehicle lays excessively when it comes to the separate claims on the on the state law claims we believe it's important to note as well that there's an additional defendant that was not federal claims that is also on the state law claim discretionary as whether or not the court wants to take up those claims at this time and we believe the case laws specifically clear on that all in all we believe that a jury question remains in this case and whether or not mr mcmahon to me w aster he was handcuffed and whether or not to really need mr mcmahon we in the face excessively we believe there's a jury question there with regards to the excessive force utilised we would ask this court reversed the district court and remand it with for that perceives thank