thanks number one five dash one two five zero pearly jackson v washington a county at all or arguments not to exceed fifteen minutes for side mr david lake for the minutes for a bottle you may or your honour's the district court erred in granting a police motion for summary judgment on the basis of qualified immunity for the following reasons we have a michigan state police report that unequivocally shows that at the time  mr stanley jackson was tasered there was two officers on top of him and the six circuit laws quite clear that when even a single tasing in this case there was in excess of four tasers that were utilized  taking mr jackson the custody the six circuit is clear that if a person is neutralized it is objectively unreasonable to continue the taser blasts and that's what happened in this case and i'm to specifically rely on the arguments set forth in my brief but i just want to point to the hagans case and also the michigan state police report that shows that again there was two officers on top of mr jackson at the time he was taken in the past so counsel  as i read it and help me here this is this whole series of events covered six seven minutes there's the appendix at page id three ninety two which is the transcript of the audio plus the coming from the same police reports i think there's quite a period of time do you say that each one of the four tasing was excessive force and if not which ones are and would you specifically address the way i read the record that after the first hazing he does become rigid and convulsing and the officers spend three or four minutes kind of saying hey you know let's get you know fellow we're here to help you and it's only after he comes out of it that then you get several minutes of flailing and they may be on top of him but they haven't got his arms and so on and so on so it's not like they just jump on him and tase him four times this is spaced out so can you be a little more specific about where or where the unnecessary mis comes your honor you correct in that series of six or seven minutes i would not dispute that there was resistance on behalf of mr jackson i think though if you look specifically at that michigan state police report and i unfortunately don't have the timing in my brief or with me today but what i'm focusing on is the evidence that shows that at one point in time mr jackson was prone on the ground with two officers on top of  and i believe there was two taser discharges at that point in time that's what i'm focusing on as far as my argument what you call the two officers on top of him there's points at which urban and have got hold of an arm and are trying to hold him on the floor and at least again from this appendix which is keyed to the transcript he's trying to get his arms under his body he refuses to comply they try to get handcuffs on him and they aren't able to that's them the female officer comes in seems to be clear that he tries to bite her so there's a difference between you know having somebody down and prone and he's not doing anything because he's sitting on you or you're sitting on him and wrestling with him which seems to go on for some considerable period of time including all of the what you call the michigan police report it's quite a thick document that's why i was trying to get you to focus on a particular event because the part that seems closest to that is when urban  are trying to get his arms behind him and not succeeding they are on him but his arms are still flailing and moving is that is that fair yes or no that's what i was focused ok go ahead ok so what were they supposed to do well i think judge white when they have someone in that set of circumstances and they have the person lying on the ground i don't think it's reasonable to discharge a taser two times at i mean this is a series of events and i just don't think that that's reasonable under the law what will you supposed to do him under arrest and do what i mean i'm just trying to find out what what would a reasonable officer have done under these circumstances there certainly were a bunch of them but he you know they they couldn't get him they couldn't get him handcuffed what what should they have done and i think that there was at least two taser shots that were discharged before the incident that i'm focusing on and i think that when you have that number of officers it's just objectively unreasonable to continue tasing a person so i want to go back to the jackson was clearly in distress from the office perspective they were so worried that they called an ambulance and they called the second one to have it be expedited because they were concerned they were trying to make certain that he could remaining four minutes after you know they got him sort of normalized there were what three more rounds of pacing that's correct and so you on the person with body became rigid and so they couldn't get him heck up there because he was almost in kind of a catatonic state friends after they got him back around then they still couldn't get the handcuffs on so there was some struggling and the biting incident come in the second attempt ok the question your honor because again we have the first series of taser discharges and then we have the record what which i indicated the judge bogs where we have the two officers on top of mr jackson who's prone on the ground at that from my experience your honor there's different circumstances dictate when the use of dr stone versus the wrong discharge and i think when they're on top of somebody such as mr jackson the  appropriate method is to use a dr stone because it's closest to the body i know that the prong discharge is more powerful than the drives done and that's what they utilized here and isn't my understanding and i recognize that your your expert who you don't says something a bit different but the as i read the record these tasers have in effect a black box about how they are discharged ok and just just to be clear about the three getting the feedback you get me going to close the biting is between three and four so if you think it's ok in response to biting then it's  three were concerned about and as i read the record sometimes he's on his back sometimes he's on his stomach they're trying to get him on his stomach so they can get their hands behind  him he keeps trying to get them in front of him is the way that i say this appendix is really quite extensive about what's happening there because they tell him to get on his stomach and it's only a little bit later that he actually does is that a fair that's fear ok are you relying on the ets for reports that seems to say that there was a problem near his in this h if you don't have any other questions thank you counsel you'll have your two minutes  good morning may please the court t v s land from the law firm of miller johnson in grand rapids michigan on behalf of the defendants washing our county as well as the deputies involved deputies urban cure farmer  your honor the issue reason this appeal is pretty straightforward did judge her the district court correctly grant qualified immunity because there is no factual dispute one that mr jackson who was a person of had known convicted felon with eight felonies involving drugs and guns and prior resisting arrests fled from a felony drug bust after two by and actively resist it is c no there's no evidence to support that that's what happened in this case indeed the first teaser was only issue was who was in the tutor to follow up on your question before was the darker probe mode and that was done when mr jackson had retreated reaching for his waistband and then took off running after he was commanded to stop he was also given a warning that he would be teased he went in through the open garage in through the kitchen tried to close the door on deputy urban and at that point he turned facing deputy urban as if you was reaching for continuing to reach for his waistband which the officer under those facts reasonably believed that he was brandishing a deadly weapon that's when the first probe mode was made and that there's i don't believe there's any dispute that that was a reasonable use of force under the six circuit standard thereafter as  noted here there's sort of the group of dr stun mode so the but there is three minutes and forty eight seconds by my calculations when you listen to the recording between the time that the initially teased mr jackson off both officers testified that those effects were gone like the muscles tense the dart mode when it hits a person it i mean i'm not a scientist here but it basically inhibits their ability to move their also didn't have him around the way that that time to check on because this is the basis for them later on hearing that when he went back to earth way famine may have been a weapon but during that initial period no pe p a weapon around the way there is no evidence in the record that the officer sought to do that during that time but at the same time they they were concerned and they wanted to call the ambulance and they did and they also wanted to get him cuffed because remember this is a convicted felon who fled into the house and remember he was screaming as he ran into the house before he any use of force was there were so the officers had a legitimate concern that hey this could be a drug house there may be other people why is he screaming when he's running in there may be other people with other guns other things so they wanted to get him handcuffed but they also recognized as a reasonable officer would that there were some signs that there may be a need for an ambulance so they've they're not medical professionals they called the ambulance but then at that point three minutes later when he regains its undisputed mr jackson regain control of his muscles and he's refusing to be handcuffed again six circuit laws clear when you're refusing actively resisting and it's in that at the next also pretty clear that you have to respect the fact that somebody is going through this physical ordeal having been ten days correct but the threat to officer safety still exists until the suspect is secured and they need to get him handcuffed and once they did that once they did that there was absolutely no evidence it because they did that there was no more use of force once he was secure in the handcuffs he was rolled over on his side he was here that's my weapon perhaps in hindsight if that were the standard twenty twenty hindsight and we don't know if they did that or not but in hindsight that may have been something that they could have done i don't dispute that your honor but the record here doesn't show that they did it and the record here shows that they had concerns about securing the entire house and certainly under the qualified immunity standard even if this court were to think somehow that a reasonable would violate the constitution in those circumstances a reasonable officer would not be on notice of that that there's absolutely no way that that would meet the ashcroft standard in my view you have to look at the justification of the honor that the to dr stunned three that occurred while mr jackson was undisputedly active really actively resisting attempting to bite one of the officers and also also one of the handcuffs they couldn't get him together so that one on one wrist one on the other and they were trying to link them together they couldn't and at one point it's in a deputy holly farmers report the right arm got loose and there is an open coffin the syrian did edge there was a significant safety risk so again and if you look at that short period of time where where an officer where the officers teased him and obviously for the purpose of this appeal we have to assume that all three of those drive stuns connected but there's some dispute about whether the middle one the third one by officer rick you're connected but that that's reasonable in the sense of getting the suspect under control and one of the cases they would like to identify for the court it's not particularly it's not referenced in our brief specifically and that's jackson versus wilkins it's a decision from two thousand and thirteen five one seven federal pen ticks three eleven and that case i think is very factually similar not just because  the suspects have the same lasts the same surname but in that case the second mr jackson assaulted his girlfriend and they called the police and she reported that they stole the car while that mr jackson approached police with his hands up as as if he may be compliant and then he still forms the officer and runs so what does the officer do turns after him he's running just like deputy urban in this case  he falls to the ground after after that suspect also the ground the second mr jackson in the wilkins decision he's taste eleven times in two minutes ok when he first gets changed he falls and he hits metal barricade to his chest and he does a back flip is i think is the testimony or flip over of some sort even after that the officers he still struggled and so they had they had to detain him and in getting him handcuffed and secured eleven times they teased him in two minutes and the this court held that that was not unreasonable and that the officers were title to qualified immunity now there's a separate count for indifference to medical needs that the officers put him in  a back of a car for forty minutes and didn't give me any treatment when he was pleading for help etc and that there was an issue of fact on that but that's not our case our officers that call the police there are any limitations on how much you can use a taser and he limitations in what sense your honor just that whether it's because of medical reasons or whatever any limitations imposed on the limitations imposed would be using your training to use you know obviously and using the the non lethal force in a manner consistent with the circumstances and when you have an actively aggressive  combative and remember there are no standards that say you can't taste somebody more than who are times in a minute or there's nothing like that not that i'm aware of and certainly not in this record your honor there's no  ok and what about the expert report that seems to say that there was more than one tasing in pro mode correct the expert report there in the dept byrne well is the experts named during his deposition if you review that testimony he acknowledged that one of the officers were faced with a person who was resisting throughout actively resisting throughout and he acknowledged that he had no basis to conclude that more than one dart mode was shot was fired in fact there was only one probe it was actually recovered as evidence and he acknowledged during his deposition after his report show that there was only one dark mode and the officers understood that they did in fact what happened was in one of the reports i can remember for some that you're urban's one of the officer said to the other hey have to shoot the dart if you're if you're on top of him as they say you talk a lot about that he was actively resisting throughout and it's clear that attempting to buy the author would the decision in el eldridge which are very familiar with in which case there was a dispute about the driver who was having a i think they were diabetic it was in their offices went in he had crashed and he wouldn't get out of the the officers went in at that point they shut the car off so that was no longer a threat or a danger and they just he wouldn't get out of the car and there was i think the decision was that there was an issue of fact as to whether he had gone into active resisting  in my view of easy violation of the fourth amendment and they may have not liked the fact that mr noel was passively resisting in the sense of exercising his rights which i wouldn't call capacity resisting but that would be a case and certainly there is some case law that suggests that there needs to be some objective manifestation i know the the recent decision gillespie i think authored by judge mckeague and believe there's a concurrence by your o honor judge donald kind of highlights where there can be disagreement sometimes on the facts we don't have that here this isn't close this is active resistance under the clear cases  the threat and the act of resistance there is no issue of fact in the us the first prong of qualified immunity is there can the can't be proven to the jury a actual violation of the fourth amendment but even if there were some issue of fact if this court were to find one at that point the second prong of qualified immunity the alkyd ashcroft decision from the supreme court two thousand and eleven states that a right is only clearly established if the right was so clearly established that every reasonable officer would have understood that it was what that what they were doing violated the constitution and so if there are no standards of the i see my time is up when i finish answering your question that's the system and they say it this way it's a body of case law and we advise our clients to look at what the courts have decided when the courts say on these facts the fourth amendment  violated now the officers are on clear notice and so it's the level of generality problem that the courts have struggled with for you know what many many years but here i don't think there's a violation of the fourth amendment and even if the court were to find that the facts thank you there's just a couple points here i acknowledge that there was some active resistance but i think what the court needs to focus on is late judge white indicated this is a neutralized a mobilized person and there was an opportunity there were six officers on scene here and there was an opportunity while mr jackson was immobilized to conduct any sort of frisking or identifying of a weapon and there was an opportunity at that point the place handcuffs on him   utra lies immobilize person you're referring to the three minutes before we get into the next tussle that's correct your honor and i think that's what i want the court to focus on as far as you know the objective unreasonableness of tasing somebody that number of times when in fact there's testimony that he was immobilized yes he's in a time convicted felon but that doesn't give anyone the right to taste someone that many times if you have any questions i'll take them at this time