harold to back away from the door but did not comply hicks told to get a booking in full told to change uniform did not comply my niece is doing a half years old and we're working on her to use her words use your words in this case what's different here and what makes it worse unshackled than mr dingman did not use his words he used violence instead of using his words that is objectively unreasonable we're arguing about what and i don't know this is a p c term what a cripple man does with i think that that is a close call and i'm going to stand viewing it in a light most favorable to the point if i think that's a real close call and putting it in the door and it being in the door two different things to wri because it's like you have to think well gather my thoughts a second here i think what this comes down to is on this issue the matters is that the defendant has done a good job of saying how this is a split second call but as i was reviewing it this it's not a split second call it really is not at all it's a split second call because officer dingman set decides he has to use  violence instead of using his words he's got a guy here mr parrish they trusted so much adamson a chair in a garage for forty five minutes waiting to book him he stood there the records show again if anything about the disparity of the physical size and condition of these two the defendant and your client i can tell you that officer damon is bigger and healthier and i can see that from the video i've looked at the videos of yes you can see it from the video and i believe it's in the research should be in the appendix but i don't have the handy right in front of me but i would guess this lucas i'm sure has at that he's probably three to four inches taller and thirty forty pounds heavier again to what extent phone know about your clients sickle disabilities he knew about he told them about some sort of motorcycle hundred footer something right he's got a two inch or thought on one foot and he's got scars all over his arm on the other arm i mean he's kind of half a man and mr damon let him keep his or thought of shoe and his and his glasses because he's also got double vision from a head injury when he went into the jail cell backing up a little bit i don't want to put on your question judge ben and it's that we have been are thinking about this is been a tight this isn't a split second situation ever it didn't have to be a split second situation that's how we're getting to this thing like well did he put the mattress in the door or did it happen to be in the door did it touch him did it not the reason that all comes around is because we're thinking that it was ok for us or damon to go and lay as hands on him to start with and not say back up this is where you're going back up against a door i'm closing the door that was the object of a reasonable action there and we get this splitting hairs when we think and we presume that it was ok to take that first action without using his words your times type what do you think you're close is cases shackle i agree with your distinction that it is a taser case but in all other and all there for aspect shackleton is on point shekel than as a greater use of force but in this case we don't have the words we don't have actually got through a lot of this fast and i thought it was going to do i talked about that officer dingman you know he we have to look at him objectively right and we can't forget everything that happened earlier on that night when we think about his actions when he gets to the jail cell he notices that he's handicapped he says you can keep your thought of thought he so little concerned of him that he has him sit in a chair in a garage for forty five minutes there's no evidence in the record that he was supervised at all the evidence shows that officer dingman had no reason to believe that mr parrish could even do him harm he recognizes disability the issue here is that is this active resistance or is this passive resistance or is this resistance at all and i think that this is a really important part of this case and it goes all the way back to using your words is it here too for after the decision of this court today in this case motion for summary judgment that anytime a detainee steps toward an officer that the officer can use violence in lieu of words with a ruling in this court be that the compliance of a detainee prior including sitting there and being a good boy for forty five minutes doesn't make any difference of violence can still be used it doesn't make any difference if the detainees can actually do physical harm will this ruling mean that anytime a detainee disagrees with an officer an officer can use violence against a detainee you know the facts are going to matter much you know you can be one factor away with a taser right and then and then it doesn't matter you don't want to say anything you can slam him down on the ground doesn't matter if he's got a head injury got one leg this to ensure and the other can't use an arm in fact what will happen the concept of passive resistance will fade you're just going to have any resistance and you can have all of these green and for summary judgment and these are never going to go to trial and that's all we want is a trial that's all we're asking you to do is to reverse the judgment of the of the district court in the summary judgment i do want to have a little bit of time for rebuttal and i'm going to do that now if you don't mind thank you district court's granting of summary judgment your honor as we believe this case is incredibly straightforward and can be summed up by the video you've seen and the testimony of mr mr parrish that's included on page twenty  page sixty two of the joint appendix and which on that page admissions undisputed admissions are included the first and once mr parrish admits that he was trying to put the mattress in the doorway assertion mr parrish was never thrown to the ground he was never swam to the ground this was a controlled move a controlled movement and which jail or dying men had his hands on the plaintiff in the promoters do and for absolutely that your honor that at all times jailer denman had his hands on the plane to point he put him on to the ground moreover this court reason why he had to put them on the ground to go to secure party had been arrested the female purdy during the course of the male getting arrested was upset in the officer informed her that she too would be under arrest the off she went to go tend to her daughter and the officer said something along the line of stop get back here that was all it was the woman continued to walk towards her daughter and the officer bearhug tackled her broke her collarbone and lost consciousness and this court had said that force was  objectively reasonable well we didn't say that we said that there was qualified immunity yes your honor and those are different points part of the focus on that was the clearly established problem well that's the whole focus reasonable requirement that he knows what he was doing was was unconstitutional here he followed his training he followed his policy of the jail and doing this takedown moreover it was the the jail policy when it was it's provided in the materials but it is if there is a threat of escape or injury to personal property impeding with the jailers ability to do his or her job that they may use force and then it's your traditional continuing levels of force so the takedown was the lowest level of force possible and we watched the witch triggering even under the policy do you do you say happened here that is sufficient that he intended to not be in that jail cell he didn't want to have a phone call me that you know whether that's really a threat of a ski you really want to say that's a threat of a ski i believe a reasonable disability correct your honor and he knew of the he knew he needed the special show and he needed the classes and the jailer jing and what was the other thing in the policy that could trigger use of force threat of injury or injury to person or group well i can attest to the comfort of these mattresses and that's beyond the scope of this the movie i don't know if we can do a judicial back up met no means no you're going to be ok that guy's going to sleep all night it's going to be all right i want to keep an eye on you those are all reasonable objective alternatives to using force escape i'm sorry i missed the point you mean he just could have said something to the guy right i mean we get to the point where it's like oh the mattress is in the door and then it's like everything goes in fast forward right so because sees the mattress toward the door everything goes in fast forward right but that's not necessary but there's not a least restrictive means requirement right and no reasonable us requirement that's right  how much leeway does a deputy have if the inmate is not cooperating in his resisting in pressing the mattress against him and so forth if he doesn't go overboard if he just as i understand it was a takedown which is not gentle but why isn't that at least within the range of reasonableness he's in jail right they've already taken through the booking process no he doesn't have any weapons they know about the disability the arm that's not  holding the matters he knows is the bad are right those are things that are known to him and what's your point there's no threat to the deputy the deputy stated that he doesn't know that mr parrish could even do any harm to have that's case but trust me my colleague here used things such as the officer informed him that he needs to step back and close the door the officer said stop get back here the officer should say back up you're going to need to stay here those are the object of the reasonable things and so your honor i just encourage you to think carefully the next time that we're here are going about this what the parish reading the case is going to stand for and if resistance goes away and if being handicapped matters or if any of this matters if