ok mr snapper kester chief judge carnes may please the court amid all the factual disputes here the words of the police themselves stand out officer butler says there was no purpose for the thirteen additional tazes on the ground officer she only says that mr religion was not going anywhere what was put three hundred eighty five pounds on his back and the only reason he didn't tell him to get off was because he was his boss as as to the officer would have concluded would have been necessary no matter what it shows is that an officer who was on the scene right on top of mr religion when all of this was happening himself believed there was no purpose for tasing him thirteen times on the ground that violates the basic pretty but my question to you is what relevance is it what an officer subjectively believed when it is an objective test and under qualified immunity the question is whether any reasonable officer could have believed not whether one particular officer did believe it sets up i believe a factual dispute about the justification no it doesn't the facts are this happened this time while this was happening who what where when and where it doesn't that one officer believes it was necessary is not a factual dispute well at the very least it violates the basic principle that force must be rooted in some law enforcement need no it doesn't it it just simply reflects what one officer subjectively follow about that now i've been criticized before for arguing too long with attorneys that's my position i don't know how my colleagues feel about it but one thing i feel certain that in this area the law has its objective test it makes no more difference than an officer says i thought it wasn't necessary then if i left or says i thought it was necessary we determine what a reasonable officer could have believed was necessary yes you're right i'm merely in to show that it's a it's a remarkable concession for an officer on the scene to say that there was no purpose for thirteen out of the one thousand tasers that were experienced here but if we zoom out just a bit there are six factual disputes which should have defeated summary judgment in before you do that i want to talk about this concept of of resisting because when i look at a lot of the eleventh circuit cases it seems to indicate that additional force are tasing end and different kind of law enforcement  strategies are ok as long as we have a situation where someone is resisting and i've asked you when i look at a lot of the facts i don't see a lot of facts about when he was qualified immunity should apply the question as to whether mr religion was actively resisting or whether he was simply struggling to breathe and we have a few pieces of evidence on that first of all we have the testimony of the chief of police himself who says that when someone is struggling to breathe couldn't know whether we were struggling to get out or struggling to breathe it was not there but i think reflects this court's wisdom in oliver and boarding that one suspect is repeatedly taste it can cause the body to to lose muscular control of what the court called flopping in some of these cases also in priester and in stevens versus city of butler courts in this jurisdiction have rightly held that defensive force  resisting pain is not the same as resisting arrest and so that is a core factual dispute in this case one of the facts she does carnes is question because we're looking at the subjective standard  a reasonable officer supposed to know whether someone is moving around because of trying to breathe versus resisting and that's a problem in terms of you know the facts are someone is moving around and that and disputed yes subjectively why they're moving around is certainly disputed but how does that how does that work with an objective standard sure so i think there are objective material differences between active resistance which connotes things like punching head butting you know being in a fight upright as opposed to passive resistance you know more subtle tensing struggling to breathe moving one's face to try to breathe or expand the lungs those are things that an officer could could observe and it is essentially a factual determination that was not there was not the result in this case they're all this is also a unique situation i might just add where the key witness who could have testified as to whether what happened here has been killed this is the dispassionate situation the d c circuit in fly the dressed where the only surviving witnesses are the defendants themselves and the d c circuit set out and it also noted that every circuit in the country to addressed this very special situation follows the same approach and that court should do three things and that in this sort of situation the first is courts may not simply accept what could be a self serving account by police to i think the d c circuit didn't mean certainly couldn't a minute the way your interpret it and minute open to interpretation but our law is not there if the police officers are the only surviving  witnesses you somehow discount their testimony and you somehow say well they could be lying because they have an interest to do so we just had a zero on back argument about whether you discount the testimony of somebody who has an interest in the case and i would just tell you there is no authority whatsoever for that proposition you know that was simply one of three steps first steps out ok so far as i know speaking only for myself our circuit long we have help time and time again if you got ten people testifying to one thing in new got the only interested party testifying to the opposite thing you've got to assume that the factual issue dispute here you don't have the other ten people you don't have one person you have everybody in agreement that he was resisting and resisting well the other i'm not sure i fully agree with that characterization the facts around it but the other two for the other two fly factors are what you're getting at and they're very important the second factor is that courts must carefully determine whether the officer stories internally consistent and consistent with other known facts the third is the courts must look at circumstantial evidence so you're right that's not just inherently because there's an interested party you have to look at the other inconsistency is and there are several in consisten and disputes in this case the second disputed fact for example is whether there were three hundred eighty five pounds of weight placed on mr relig after he was hog tied and fully secured officer sheely for example  says quote was not going anywhere and the only reason he didn't tell him to get off was quote because he's my sergeant officer williams himself when confronted with this testimony that he put all this weight on mr after he was flex cuffs said there was probably no reason for why he did that that again violates the basic principle that force has to be justified by some law enforcement need the third of many factual disputes here is the question of whether mr image was still cops when she arrived that prevented meaningful c p r officer jenkins testifies the opposite eighty one three on top of that we also have three falsified at the davids which are quite raise a unique credibility of any of the the attorney to the officers and and put that before the jury and say this attorney probably did something eerie shouldn't have done and you can use that to deliver a verdict against his client question ability the question the credibility of the defendant's this is reflected also in jury instruction how does how does it call into credibility they could how does it come into question the credibility of parties we don't even know had anything to do with those affidavits it we do know that it was prepared by the defendants or their agents and no no we don't know it was prepared by the sign so i really mean to say we don't know there is some we do want to remain to find out that's not going to take long that you know how that room and don't come out there was evidence in the record that an employee of the sheriff's department went out to ms ward's residen a prepared statement she tried to correct the statement they said sign it don't worry we'll correct it later it was knowingly submitted and correct is that employee a party in this case we don't know we don't know if the employee was a party probably not your honor but i we don't know the exact identity of the person who went out to ms wars house i'd also like to stress in terms of the qualified immunity notices here the importance of proportionality and purpose that is the entire premise there was no need for additional tasers no the only real effect would be to inflict pain i guess that's on page one of eight to one eleven of tab one forty four fifteen by the time the fourteen additional tazes were used on religion the threat was seriously diminished if not effectively over this is a naked man who was obviously an armed police recognized from the get go that he was experiencing a mental crisis he was surrounded by six highly trained law enforcement officers and face and so do you have undisputed facts are not and facts that you have facts in the record that show that he was to need to be taste after he was still struggling to be handcuffed  after he was still struggling to be handcuffed i think that even the police account says that we also contend that he was handcuffed and continued to be taken i guess the question is do you have qwest do you have evidence in the record that show that he was detained after he went out that is still in dispute i think it's connected with the credibility problems how is it is it in dispute in her affidavit so if a jury did not believe that did not find credible the testimony where when the handcuffs were taken off for c p r purposes they could also find not credible the testimony about when the handcuffs were put on the so if there's evidence to support different than the defendant officer testified to there's a genuine issue of material factors to everything that the defendant officer testified no i don't need to go that far one not oh yes sure where do you stop short of that you said if there was a dispute about whether the hand on as to the c p r moment right that's a credibility issue and it undermines the question of whether he was tasered after he stops struggling it's essentially the same question of as to whether when and on and if the jury because of the square factual dispute i don't think there's any question about that about when when the handcuffs were taken off if a jury were to disbelieve when that occurred they could also readily have found credibility problems about when they my name is fred clements and i represent the billies from lee county sheriff jones deputies mills jenkins and smith to begin i want to dispel a factual myth about officer brothers testimony officer butler did not testify that there was no basis for the use of the taser after it went to the ground and to the contrary he testified  being asked was there any further reason he testified quote he was still actively resisting and your office can find this in document one thirty four dash four page eighty one lines six through eight what about the part of his testimony that your brother over there didn't necessarily quote but paraphrased is there anything to support that which is i do support you if you if you read the testimony which is actually on the page before i started then yes in the ideal situation when someone is taste and goes to the ground then what you want to do is use that opportunity to secure the individual which is what the officer did you know i'm asking you is there anything to support his position that people officer said i thought it was unnecessary to continue posting in total no your honor can part not in total but in part you know your honor and it would be and you can read for yourself on the two pages before what are sided and including his response provided which at least presents a view through the eyes of the officer what the officers were having to deal with is deputy mills was in a tray privy reynolds situation where he was alone with an individual who was unpredictable who would not follow directions who came toward him in an in an aggressive manner you can hear that deputy mills warned him before he discharge the taser this is a this this is a draper v reynolds situation the subsequent taser was after the flight began and after mills observed him going toward a home the door of another home the last three incidences where the taser occurs is once they had gone to the ground and the and deputy mills is in what he describes as a fight for his life  one of the things that is important before we leave the taser use of deputy mills is if you listen to what deputy mills says after the second taser use when illit first goes to the ground deputy mills says calm down it's going to be ok which is consistent with the testimony of what occurred at the war residence where the officers were described by ms or as being professional telling them to calm down illiterate attempted to enter another residence and turned in an aggressive manner now realistically you know the number of discharges of the taser fourteen at that time it's not  insignificant number but the number itself doesn't make it constitutionally unreasonable for example in a similar set of circumstances in  encourage compliance to be taste which this court found in that case reasonable up to the time you're about to say the last round of or one of the lies from the time sitting there and only been one tasing and the problem impervious to pain compliance techniques when they saw him climb across a barbed wire fence as if it wasn't there and drive stun mode of a taser is a pain compliance technique which is with the facts that they had would not have served their purpose of trying to restrain him as opposed to the probe mode which will actually take over the neural muscular system of the person which could have assisted the officers in anything else if you're honest have no further questions we don't mr gamble first is a failure to interfere intervene in the tasing of mr relig by deputy smith the second is an excessive force claim where she claims of my clients in use of force that the quote pollin on as is there any evidence in the record i know this question probably should go to your brother over there but is there any evidence the record that there were multiple officers on top of them at the same time most of the evidence undisputed evidence in the record is that after relig hit the ground deputy mills and officer butler both got on each side of mr illit at this time smith was still standing behind them next officer way humans arrives debbie mills asks williams to relieve him by this point had already received a torn bicep muscle and would later be treated for exhaustion at the baton which smith had placed in between the handcuffs in an effort to control the arms we have control of that he put one knee up towards the upper torso between the shoulders and then one day towards a lower rib cage his testimony in the testimony of smith is that at all times his feet were on the ground and of the balls of his feet and at no time was his entire weight placed on  so it was mr lee jones the ground then lying on the ground yes your honor he i'm a little confused about that position if somebody had their knee in his back how could that person balls that person's feet both feet be on the ground he was crouched over your honor yes he wasn't completely on top of it he didn't place all of his weight on top of mr religion was his more crouched on top of him than it forecloses call was crime lewis the city of west palm beach where they used a restraint specifically for that a four point restraint which draws the hands close together when the feet close together and then the hands and feet both together very closely in a in a hug tower hobble restraint here deputy g three flex cuffs and they estimate to be in the neighborhood twelve to eighteen inches so we have three circles that connected the leg chain to the handcuffs the light chain is eighteen inches long between the two cuffs and then you have twelve to eighteen inches of flex cuff to hank of these are two sets of handkerchiefs so there's  twelve to sixteen inches in between the hands so there's a lot of movement back there is not drawn all the way tightly as as louis was in the west palm beach case  arms and legs they're totally restrained why is the knee on the back the testimony of and that was was going to is that he continued to flop around he would not calm down he was a danger to himself and that's the she l testimony and that's also mrs wars testimony is a continued so much that he was a danger to himself with officers were only trying to calm him down were on a hard concrete surface they've come up a set of four to five  years there are concrete statues and objects all around and he continued to to resist it would not calm down it's not as if once he was put in the heart opposition he that you could just allow him to to to flop around on the ground and continue to hurt him self that would be the claim then why after restraining him did you allow him to debate himself against the the hard concrete or br  is faces always turn to the side if they contradict the affidavit twenty of you want to call them you asked the district court to strike those we did and the district court struck them they did and therefore didn't consider them because when you strike something it's no longer in the rec correct and now you seem to be arguing the district court shouldn't granted summary judgment because those affidavits created a credibility question that ought to create a genuine issue of material fact but but they're not on the record because you ask the district court to take them out of the record we're not arguing that that stricken affidavit is create a factual dispute we're arguing that they raised but over unfortunately raise an overarching question about credibility here that's the same thing there's there's no credibility issue beyond the summary judgment standard a genuine issue of material fact i mean they're either in the record summary judgment or they're not us the district court to take them out it did so and now you saying the district court erred in deciding summary judgment in part because of the affidavits which were no longer on the record because of your actions i see it somewhat differently  that a reasonable jury could have reason to doubt the testimony of at least one of the officers here and part in a case where all of the material testimony comes from an interested party and assert the only  clearly erroneous they had them but they're relevant to your case you're saying and they created genuine issue material fact you say i think the court can both correct factual the things you wanted out of the record and now you say he made an error but calls of things that you ask him to put out the record that that i have a real serious problem wasn't he i understand your honor i just to clarify one point the only struck parts of the affidavit if i might just zoom out for briefly i just want to stress two things the parts he struck with the parts i misspoke the parts he struck with the parts that you said were grounds for reversal you only have to root rule for us on any one of them to send this case back to the district court there's the question of factual disputes and all of your all of your questions about exactly what happened explain why summary judgment was inappropriate in a case like this secondly there is a credibility question which we just discussed and third there is the violation of clearly established law did all of this force cumulative force serve some pressing need or a law enforcement purpose i also want to stress that this is the most extreme taser case this circuit has ever seen in terms of the number of tazes nineteen the number of officers involved six the duration of the tazes sixty eight seconds and when you put that up against the diminished need or diminished threat it's hard for me to understand how it it gets past a basic proportionality and alice's finally regardless of any argument i've made here today i want to leave you with the testimony of the officers themselves and i would direct you towards the officer testimony of officer butler that's one forty four dash fifteen particularly pages eighty to eighty one and one tend to want to leaven where he says there was no purpose and this was just inflicting pain also the testimony of officer sheely that's tower one forty four eighteen and page seventy seven to seventy eight where he admits mr religion was fully restrained by the time he was hogtied face down on the ground and mr and sorry does he does he said that he does the officer in his deposition testimony say when he was fully restraint when arts or williams but three hundred eighty five pounds on his back yes he does he said it was after the flex cuffs and hogtied you're adding to that that officer williams put three hundred eighty five pounds on his back as opposed to what i understood some testimony to be i c the a whose testimony you're citing you didn't say that officer williams put three hundred eighty all three hundred eighty five pounds on his own the victim's back did he didn't speak to that  understand would take that case under submission and stand in recess until tomorrow