base number seventeen one five one three joseph flanagan versus s plane and in his individual capacity arguments not to exceed fifteen minutes for  not going to repeat them i just want to stress what i think is a critical factor in this court analysis for both issues in that it's the fact that the resisting obstruction offense began when  as vehicle and asked plaintiff to provide is some identification and attempted to pat him down and it did not stop it was one continuous transaction until the very moment that deputy pain and was able to he was subdued to the factual point he was hit fifteen to twenty times in the hand correct now i would have to disagree with that your honor the testimony was clear and i think the district court conceded that that i'm so i mean you did say that flanagan you did plan it and said that in he also admitted that deputy pain in throughout this entire struggle which is now on the ground was repeatedly ordering him to stop resisting so  n accurate i mean is that an accurate understanding of the testimony no i'm sorry i don't recall him making any type of abuse that isn't that what the district court thought the testimony of the  him but he concedes for purposes of this appeal that those struck strikes were delighted if if he himself is saying there are necessary then why isn't it and so then that it seems to me and tell me where i'm wrong  it seems to me there's a pure factual dispute over which we don't have jurisdiction which is claiming the point of saying he punched me fifteen to twenty times wrecked the officer saying i didn't punch him and i didn't need to punch and right correct  that said issue in this case because the court found the other actions reasonable but to go specifically to your point your honor i think that that testimony has to be viewed in context because deputy pain in testified that she did not deliver strikes because he didn't believe such strikes were necessary and he was able to subdue him without administering any strikes but i'm sorry but he didn't say he didn't say he didn't say that it would have ben that's all he said and you have to look at his testimony in context of the fact that he says i didn't need to ok that's a different question than whether if as if we accept plaintiff's version of the facts as true that he ad ministered those strikes which we have conceded for purposes of this appeal way of curry that he was struck ten to fifteen times in the head but we would submit that that's not excess of because mr paine in continue to resist question of fact that there was no post arrest violence the district court's on the other hand taking the testimony in the light most favorable to flanagan he was already on the ground when piano instructor allegedly started hitting him in the head right but he also in the court also acknowledged and it's also consistent with the record that even though he was on the ground he also testified that that plan and it's uncontested that mr flanagan reached for his gun while they were on the ground your point though on this i mean we can narrow this down about ten seconds yes all right back to your point is he still trying to get off this is this is at the end of this you know long period of your two resistance noncompliance racked and and during this ten second interval that he is trying to get off the ground still until finally he's had ten or fifteen times i mean that's your excepting planers first in which we are totally willing to do we need to do for pry understand i don't really accept that that's true and you show me where and you may be right just to educate me where it is it's in the district court's opinion or in the facts that in my statement of facts because that is that's the critical point in this case well  or use any force whatsoever once he was secured in coughs wait where where are you i'm looking at page id two fifty nine that's where where that's where there's the concession and three fifty nine that's where you'll find the  concession by mr flanagan that there was absolutely no poster asked violence used on him once he was secured in handcuffs so let's assume yes mr flanagan testified he still trying to get up during this period i asked what what do we do with what seems to be the officers testimony himself his own believe i know that it wasn't necessary at that point right i mean that i mean i think what you said before was he was not a cold hating themselves right because he said i didn't punch the guy to begin with runs but we have to assume he was punching the guy right and yet you're the officer we still have testimony of him saying at that point in this situation it wasn't necessary right so i mean right i got the worst of both worlds the way this comes to us you know in a qualified immunity deal and what do we do with that i just add i really think that you have to if you if you focus in on that response to that question in that context of course i have a problem but but but you have but you but you have to look you know i ask you something about that yes because i maybe you're conceding too quick and maybe i don't understand it and so maybe you and your opponent can clear it up for me yes so she says go back to her statement on page seventeen yes she has two sets of quotes ok she says given the circumstances and scenario i didn't have to punch plan again to subdue him i want you to notice where the quotes and then she puts another quote and then when i go to the deposition here's what the deposition reads and i don't have the next line to maybe you can tell me ever hit him in the face or head are any reason to do that no server to do that would be access would in after he was handcuffed before given the circumstances in the scenario i didn't have to but he never says punch him in that had and so i'm i'm not sure why is that why are you conceding that's a concession and i really want to ask your opponent that but given the search is the district court misquoting or is there something i'm missing because she says punch plan again to subdue him but i don't see that in here where did he say punch plan again to  question if you look at the q and a that's all he says he doesn't say punch flanagan to subdue him i'm wondering where that language comes from because she has then another quote back but right she s he didn't have to resort to that type of force he managed to do it just with the physical struggle on the ground but the mere fact that he says i didn't have to resort to that doesn't mean automatically that the ok well then if you had it would have been excessive the whole point i mean the the danger i think in this whole this whole this whole path that was that we may be traveling on is that who can how who can say as we sit here in the in the tranquillity  issues you really have to keep in mind the fact that this is one continuous sequence of events and the resisting obstructing offense took place over a period of however many minutes this chasen's struggle covered and so he went to court and pled guilty to that to that offense of resisting and obstructing but now he wants to come back in sue in argue that it was excessive force but if it blocks any kind of a civil case here no matter if they can be consistent right then it's no problem and here there's an argument that they can be consistent which is that if he was gone resisting at the time and was subdued then everything post that has nothing to do with the resisting in running and disobeying a command perhaps yes but it there but but under the facts the case this case it all really depends on when you determine that th after being tasered inspector pepper sprayed he gave up so i mean he i agree with you he's testifying to both things we've got to figure out what to do with that but he did say also he gave it right but at what point and he said when i'm on the ground i gave all right but this is this this is this this is this twenty twenty vision where we look back in we don't know if that's the danger and just focusing in on this tiny little segment of time is that you have to take the entire situation into a fact and what would a reasonable officer do and given everything that preceded it gave up he's on the ground he's land there you punch in fifteen to twenty times no matter what he did before that even if he shot at you before that if he's on the ground laying there doing nothing the officer can't punch him fifteen twenty if that's sure that he were was doing nothing i would agree with you but it's not what the record demonstrates mr for mr flanagan it meant ed that he continued to resist until the very on behalf of the tele mr flanagan i want to start with there's been a lot of discussion about the qualified immunity analysis and i raised it here right well but i think you might want to cut what you see right so so there's some question about what he's doing at the time of the fifteen twenty strike so i have a quote from mr flanagan step position i'm going to read from there's two page id numbers are read both of them id for seventy four and two fifty three quite a question ok so you got to the back yard of jeff's house and what happened and three tase me again sprayed me in the face with mace ok so you taste you answer and he began beating on me how many times they taze you just once just once answer i was already down  go to page eighty four seventy five to fifty four line eight i thought i had gotten away that's why i'm out of breath i'm trying to says now he catches up to me again i get tay's and i get mace and i get the kick i get kick the shit out of well there was absolutely late that he gets tasered and all that stuff happened we know everything that happens before he's on the ground and we get to the point where punched i mean we know all the bad stuff ok we got that so why i guess my question for you is your client testified in his deposition that he was still trying to get off the ground after this very long period of resistance where he tries to grab the officers gun he's trying to get off the ground at the time that the officer starts punching him i think there is that quote but i also know as you read further down for seventy five and two fifty four he says i'm trying to set out to relax and catch my breath yeah i was laying down in the backyard for all i remember but he's trying to get up so let's assume he's trying to get up let's assume that that's that's the way we have to take the record here he testified to that yeah well he also testified he was laying this period of resistance trying to grab the officer's gun why can't a reasonable officer punch him at that point to bring this to an end because that's not what's alleged in this case the allegation in the case by mr flanagan is that he was punched close fist and open fists fifteen to twenty times that's where the reasonable next question comes in oh it's it's not it's not that the officer chose to that he did what it what case would you point to that would make clear to the officer that after this long encounter and him still trying to get off the ground that hey officer you cannot punch him at this point i'm not sure i mean well what case would you this about case law this analysis so what case would you point to i think you would have to before we even get to i think you have to look in this morrow was it was like the phrase the just want to know what is your best case could be because that would be helpful to our analysis of what is not you know it's a close issue here but i mean i guess i would know back in for and i'll read it as a threat and question did you ever straight mr flanagan and i had answer no sir question ever punch him question answer no sir question ever hit him in the face or head we're assuming he all those things did in fact happen because of the posture of this appeal what did he say it would be excessive  you say there's a question twenty and you would agree that there would be no reason to do that and in this case twenty to answer in this case no sir so specifically you look at all the questions and then you lines twenty to twenty two he specifically says there's no reason to do it and we talked about that but here i guess here's the question i have for you this is not a subjective inquiry it's an object of test whether a reasonable officer at the time he starts punching your client would know from the case law clearly that he should not punch your client it's not it's not what he said it's what the case l so what's your legal argument as to why an officer would have known at that time after all this went on the one thing you can't do here after tasing him spring i'm so on this po and there's points in the record he says he was laying down when the lawyers other points where he says he was getting up in isn't there case law you correct me if i'm wrong isn't the case on the sixth circuit that says if someone testifies inconsistent with inconsistently we can disregard both for to determining this in other words if he's testified to two things i wasn't trying to get up and i was trying to get out don't we throw those out do we leave that to a jury where o is capable of making a claim and one isn't i don't know the i don't know that case i know in the cases where there is video in the video contradicts the testimony of the poet they used throw that out i mean i am aware of that if he was back to judge a couple of just question do you concede that if he was trying to get up after this long and you know protracted chase and if he's trying to get up when the officer is trying to subdue him the officer can use force to stop him from getting off handcuff the least amount of force possible yes but i would submit jury would have to deal has the least amount of force as opposed to reasonable i don't have the types because there isn't one pass but the test is whether it's reasonable and is it reasonable given the fact that you have an officer that's not just simply whether sort of you know metaphysically we think it's reasonable the task is whether the law would make clear to the officer that it was on reasonable and and i'm i'm just trying to be candid with you about my concern about your case your position here which is that it seems that the record would support  the proposition that your client was still trying to get up and and i'm concerned that the law did not make clear to the officer notwithstanding anything he himself said that the law did not make clear that he could not punch mr plan again at that point while he's trying to get up and you know you can speak to the law on that or where you can talk about something else but that's what i'm concerned about here's why i think the law was clear at the time because you have the o himself testifying that punching him fifteen to twenty times would not be reasonable where would he get that but from the case that from his own beliefs we mean well he's testifying that fifty years do all sorts of things that are that are better for society or better for defendants in the case law requires well but he's also testified in this case he's been trained on use of force he's been trained in excessive force and then you have his oakland county circuit court it says quote i ran away from the police and had marijuana in my possession and quote that lot it would be that resisting arrest or say just and had marijuana on my person that is the complete statement on the police in the state court that served as the basis for their resisting obstructing plea and as the district court said that guilty plea was really based on his failing to obey a law full command and not some sort of physical resistance and the district court made that very clear and i think that and i think it's important here too because he's the basis of the plea in the district the circuit court was not that i physically resisted i punched him he tried to get me i tried to grab his gun it wasn't that the basis of the police was i ran i didn't stop what he told me and that's the district court that's what they looked at in this to court and that aspect was right and you know again this is defendant second bite at the heck worse is humphrey our apple they filed the twelve b six right out of the box in the case in the judge deny that the guilty plea did not change over the course of the litigation really no different than what this circuit decided in twenty ten in the street where case you know there heck was not intended to be a shield to protect officers from one thousand a threesome and the problem here is that the statute is written in michigan so broad that if i if we were in michigan and i walked out of the courthouse today an officer said give me your name and i didn't do that technically i'm resisting and obstructing and now i'm guilty of a felony so that mean the author can then punch me fifteen to twenty times and then at the end of the day as an attorney in the state bar michigan i don't want  rebuttal if can i ask you question if we find one below is permitted why would fifteen to twenty in other words when does it cross the line especially where he's saying i don't need to do when the blows continue after the person is subdued why isn't that a factual issue because he is saying it's on what he was to do he says but he also admits that he struggled up until the point that he was subdued and that's really that's the whole point in he actually gave us insight into his reasoning flanagan a he testified that he was trying to get up as the blows were being delivered because quote who wants to sit there and get sacked or sprayed in the face or get smacked around he acknowledged that he physically resisted pain and up until the moment he was secured in handcuffs that's it page id two sixty in two fifty eight and they also it's very clear that no force of any kind was use once he was secured in handcuffs and so that's why the number of blows whatever it took to get this guy under control is what it took and if it take his assertion that it took fifteen blows and mr flanagan admits that he resisted the entire time then i guess it took fifteen blows but we're not supposed to be armchair quarterbacks that's the whole purpose of qualified immunity and in there is no case law that made this clearly established he can't provide one because there is an on and the cases that were cited by the district court all involve instances where the person was physically subdued either in the rear of a patrol car or in handcuffs or physically by an officer laying on top of the defendant that's we don't have that in this case there is no allegation of post subdued violence so those cases that were cited by the district or in all due respect have absolutely no bearing on this case and finally i'm the heck argument very briefly if as i keep urging you take a look at this entire transaction from beginning to and offense is not what defendant said it was for purposes of a stab a plea because we know that that they can admit just enough to satisfy the elements and that says that's enough but when you look at the real facts of the case and you look at the beginning to bedrock principles of pack or thank you very much they should be s