or on appeal from summary judgment in a case where there are just a multitude of disputes that material fact and disputed inferences are underlying each of the elements of the cause of action for excessive force and the affirmative defense of policy and unity it's  officer on notice that the uses of force in this case were excessive and unconstitutional but i'd like to start with the excessive force cause of action because that's a good way to get into the facts of the case the th circuit has repeatedly held that excessive force is inherently facts specific and only rarely taken from the jury in this is especially true in a case like this one where there is both video and audio which  he there your client had a knife an officer lay on could not know whether it was successful to him when he lowered his hands because he was on the other side of your client this is a domestic violence situation at least as far as the officers knew that your client ha notice of this incident was a report from their dispatch that there was a crank teenager complaining about mom's boyfriend and saying some pretty fantastic things about what he was doing in the house but we submit that just if there are a reasonable jury could be skeptical and not about the credibility of the story and not necessarily believe right off the bat that it formed the basis for a serious often ends just due to the fantastical nature of it that crying teenagers are not automatically or necessarily let's let's let's cut to the trace where there's a knife and instead of keeping his hands in the air your client more important lower his hands and he he there were three seconds there just to get the timeline correct we officers reavis who had been giving the orders to mr coarseness it had said get on your knees that was the last  known to have the time of the actions that were taken and what a reasonable officer in that position would have understood to be the case and one second or three seconds these this is very very quick i mean we all know washing your hands for twenty seconds is a long time but if you go one dollar to three dollars it's not such a long time and it's hard i just have difficulty seeing the only reasonable nose even arrive at that conclusion very easily because we have video that he's lowering his hands very slowly he does not appear to be reaching the hands when you reach for something you reach with one hand not both but they're not going to one side  also you can see his facial expression on the video his facial expression is key one of confusion and that's a perfectly reasonable thing to look at and in order to reach a decision about what is in his mind  the police also acknowledge here that people are anxious and frightened and during encounters of this nature and delays misunderstandings and misunderstandings are not necessarily  context requires consideration both circumstances this is rewarded qualified immunity contests has emphasized as specificity in terms of the clearly established precedent is particularly  against that it's also important to interpret it too narrowly clearly established facts can apply in a variety of factual contacts and material facts that need to be similar are those which outline a concours of the legal reasonable jury could conclude that no serious offense had had occurred here he posed no immediate threat again that is disputed these are disputed fac that should and should be submitted to a jury and not be subject to summary judgment  if qualified immunity is over apply this leads to a breakdown in trust between the police and the people that they serve and protect when i'm a person can be summoned out onto their patio threatened shouted  confused and then shot for misunderstanding the orders confusing orders which could easily have been clarified three seconds it's quick and it's quick and have to issue a clear order hands up give a warning or we'll shoot no clearly established law to provide guidance but it's necessary to remember that this is balanced against people's constitutional rights to move as i have a question was your client in your opinion engaged in active resistance or passive resistance of the police instruction to put his hands up i think neither he was not resisting he simply did not understand it on the one hand he had been ordered to get down on his knees and on the decision it's three seconds which in geological time or in even just regular time is a short period of time but it is time enough to give a person some warning saying this is based on what is clearly apparent on the on the video and you can see officer is that it's late extended jumping and placing his body weight on not just stepping on him in order to but plan thank you your honor thank you correct to the vector aeration so there he had ongoing neck pain back pain headaches emotional distress whether that's a serious injury is another question but he did  he did suffer injury why isn't that set of facts enough to forestall summary judgment with respect to refocus well remember at this is at the scene the plaintiff that he was he was fine he refused any kind of medical treatment and he did not appear to be injured at all labor cares or whatever we have to  the extent of the injury to the plane or spherically is serious enough a jury could conclude that the officer used excessive force more i think there are circumstances where that would be true but in this case st of all the tightness of the handcuffing and interested he had cupping was never played in this case it was not an issue in that case but when you look at the video we're talking about back pain here not if you look at the video and you look to see exactly what this officer did it there was nothing that he did that would show that he was putting any kind of excessive force onto this gentleman when he was on the ground that sounds to me like a really good jury argument as to whether it was excessive but it just seems really quite indistinguishable from a large except that there was more reason to be pushing because the was concerned that he might be thinking about trying to turn away or trying to get back in the house or try and remember he still has the night he still has the night  in pain i would not disagree with that i'm sure he wasn't pain but he was still standing he still had the ability to reach for and grab that knife and that's what the officers were so concerned about so when he starts to go down still with the knife in his pocket officer rebus testified he was very concerned that he could still get that knife or he might try to go away and so he did what testimony on that is the officers do it frequently and they because the hand posts are a place that you can grab and there is some exit in see here they had to move this gentleman out from this doorway as quickly as circumstance the procedure is followed roughly or with more force than usual or event messire in the circumstances it may be standard but that doesn't mean  the bin bag shotgun now as i say from the fact you had five officers there right correct in the hall for cers were all pointing guns at him right correct and he was about ten to eleven feet from the officers correct i know he was standing there and the video clearly shows already lowered his hand but he was had his head down and sort of what looked like a submissive position and it without any warning he shot twice by officer leon now what on those facts i guess i'm puzzled with how officer leon could have objective really thought that to proceed that he was perceived he could perceive himself in imminent danger from court as luna when you've got five people pointing guns at him and if he's armed yeah he's got a knife in his pocket but he would hardly be able even if he wanted to grab the knife would have been able to attack five policemen holding guns on him so how does that not raise a jury question of whether leon objective lee thought that he was in imminent danger when he started shooting skordas luna well because if you you have to look at the the whole circumstances all  that yes there were officers there with guns but remember the officers you have to put this in context the officers are responding to a very volatile and dangerous situation to their isolated serving for five minutes sitting calmly in the kitchen drinking a beer it was for they knock on the door to call him out reisa wonders if they were charging in the midst of a chain saw saw down the door to get to the girlfriend no they don't have sixteen's that night when he sees that night in this context he yells yes a knife he has a knife in his left pocket and he and he immediately orders there was objective belief of the they were in imminent danger and i just don't see how any of these people concluding leon could think he was in imminent danger with he and four buddies all holding guns pointing at quelling corner him i mean he could have taken patio and so there was nowhere for these officers to reposition that they could control this and not and and prevent mr porter's luna from getting back in the house and that was their biggest doesn't seem to mean that there can't be different interpretations of the inferences to be drawn from what is seen in other words everyone literally sees the same thing but maybe not draw the same conclusions from seeing the council's earlier representation the hands up order the one clear order and the st shot were almost simultaneous there was there was no time for him to hear the order and react to it because it came at this same time east west because there was a wall behind them but they could have gone north south along the wall if they felt that there was real danger posed by media threat posed by mr carter's luna they could have put distance between themselves and him