who had not who was on on whom the officer was attempting to affect the arrest it would not be clearly established that it would violate his constitutional rights i first believe that the that parsing out the two tasing i think was an error this was one of that they were attempting to affect the want to rest on the suspect mr graham he was fleeing the undisputed the uncontroverted facts are that he was fleeing the scene a gun had been discarded  detective claimed she had had stated that he was under arrest had asked for him to stop running and warned him of the use of the taser which was then deployed who wouldn't wouldn't make a difference for a group with the meaningful distinction between the first and the second prior to the second the individuals no longer either implied or attempting to resist it would make a difference in the analysis i don't just that in a vacuum there were other orders there was another order that was given  detective clips but in it would affect the analysis of it however detective clips testified in this deposition he fired the first taser after the it did he used the word incapacitate on the next line of questioning clarifies that it knocks him down as soon as the five second burst from the tasing ended he gave him detective clips gave mr graham orders to put his hands behind his back and stay on the ground to which mr graham did not comply with either and was attempting to get back up last for five seconds during that five second charge that electronic shock knocked mr graham to the ground detective klipsch at the end of that cycle began to give continued commands to mr graham again to put his hands behind his back in a on the ground neither of which mr graham complied with he began to get back up and in detective clutches perceptions he was certainly from detective clinches perceptions he was beginning to get back up appearing to attend iran and therefore yes he does testify and that to the answer to that question that incapacitated the very next question i believe was but he still had some fight in him to which the response was the first burst knocked him down as the cycle and i began to give him commands with which he did not comply and not only did he not comply he was actively not simply did he not comply and that he didn't put his hands behind his back but he was attempting to actively get back out there i guess your orders your order with this is would you describe it as a fact it's a it sounds like what you're describing is there's a factual dispute where the officer believes the individual continued to resist after the first days but his his own comments lin themselves to a position of the plaintiff which was there was no continued resistance so there's a question of the fact that could be material or sounds material in sounds pretty potentially crucial to this case as to whether or not there was continued resistance prior to the second starring in the twenty's so my answer to that i think parts the first one is it's not controverted that after the first hazing mr graham refused to comply with the order put his hands behind his back and began to get back up and in fact even in mr graham's own term incapacitated being stated by the officer in the in the deposition and the answer to that question reading the deposition in its entirety including the follow the following questions indicate find in fact contrary to what the the district court didn't find anything subsequent to the term incapacitated that the analysis from the district court was it incapacitated him period and there was nothing that followed after that there is no dispute of fact as to what happens next well i think that this court moves around which case not much we can do about it if i suppose then they anything then it would be if you had news the word incapacitated we probably wouldn't be here i agree but i agree with that but i don't think that that changes any of the facts or is not a factual dispute it's just a question of law as to whether or not i can closer look at what i'll take a closer look at and i really don't believe that there's any question of fact as to this case but you're right admitted mr graham says i don't know what he he doesn't know what happened but he also is bound by the facts that were found in his criminal case so the fact that he states i don't know what happened we do have a  taped at a completely different location so i think and then i don't remember anything and i woke up and i was in handcuffs but his testimony is that where he was at was at a completely different location than where it was found in the criminal case so i do believe he would be a stop from even even saying that much because it would render the criminal case impossible if he was still on the on in front of that residence the entire time  so i do think that there is then a record outside of just what detective cliff stated and as i said i don't believe that there's any fact it's in actual dispute here to produce record be with your stamp or the district the first taser he was incapacitated all of that would be consistent with the criminal case and then stated that as a matter of law tasing an incapacitated suspect at least because he was continuing his fli if there are no other questions at this time i'd like to reserve the last two minutes and fifty five seconds for a bo second time while he was incapacitated while he was not fleeing and while he was not resisting arrest and the answer is that he's not entitled to qualified immunity that's what the district court found and this court should affirm that ruling and when the district  incapacitated the second was that it was on the ground the third finding was a gram had just been tasered mode the fourth finding was a gram was not posing a threat of violence to anyone including the officers in the vicinity tasered i think the fact that he was incapacitated means he was not able to flee but he still may have had some ability to get up off the ground but none of that would give detective clips qualified immunity re evaluate the district court's factual the terminations on a qualified immunity and a law to repeal the only issue or the only issues are abstract legal issues and so once we have these set of facts within which to work the outcome is administering fifty thousand volts of electricity it can kill as cause excruciating pain paralyze the muscles it can burn your flesh so before an officer uses a taser on it a suspect he has to be aware of those considerations and it's a constitutional violation therefore to use a taser on a suspect who's not resisting who's not feeling and is incapacitated taser is not to be used to ensure compliance and also states it is not to be used on a passive subject but that's what we have here we have a passive subject mr graham was incapacitated and that's according to detective clip his own testimony and then at page two ninety eight the special order on this use of tasers says that a second burst should only be used where the suspect is being aggressive under normal circumstances you only are to use one five second cycle and in this case we had to five second cycles and a second five second cycle was against an incapacitated individual who was not feeling and he was not being violent toward it at this point the officer says that the defendant would read the plaintiff here attempted to get up and continue flying the plane to doesn't recall that that's the different versions here yes my client has testified that he was knocked unconscious after the first taser application does not remember anything that happened as so there really isn't any country version or country verging of the officers statement that he tried to get up not by my client no and i think it was or someone else present no i don't believe there was another detectives like the manley but i don't believe he was in the vicinity so the only evidence about what happened after the first taser is officer clips that the defendant or the plaintiff tried to get up and continue flying yes that's correct so if this this case proceeds and goes to trial what's going to be the the the fact issue and what will be the evidence that the jury will have to evaluate what i think i want to stop being dismissed because i think there's a discrepancy between getting up and fleeing i don't think those two necessarily go together mr graham for certain be getting up without intention of flame but if he's getting up he's getting up in contravention to the commands he's been given yes but you may not tase just for noncompliance that can be passed that's a form of passive resistance to my mind he can get up and detective clips as many other option that his disposal  in handcuffs you could try to wrestle him to the ground there's another officer in the vicinity there were there two officers in this case at the time that we're investigating what was going on so there's a lot of different options at the officers disposal before they taze him second they would have to believe me and i would say that all of our arguments are based on the district court's factual findings and detective puts his own testimony none of our arguments rely on any testimony from fr and i would say that none of the cases that detective clips cites involve the second taser application or an individual who was incapacitated and when it was done to ensure compliance with and you do not have any other questions i would you i think most of the argument we heard from from mr graham i think articulate why that this is a proper issue for review here the fact that the argument being used consistently that it was being that the taser is being used for compliance they can only be used for compliance if he's not complying there was no order from the district court that he was incapacitated but as you heard today there's no dispute that there was no that that mr graham was not complying with the orders that were being given so certainly there's no dispute that that mr graham was not just all incapacitated and simply lying on the ground he there is no dispute that he was not complying with order and whether or not he was getting up to flee or just simply getting up this would be from the officers perspective the fact that there is case law that goes on a nonviolent man resisting naam fleeing suspect a taser might be inappropriate but there would be nothing in this case that the factual pattern that is that has been adopted by the district court it would not be reasonable for mr detective clips to have known at the time that mr graham was on arm had already seen at least one weapon he would not go into actually affect the arrest under the assumption that he was now simply an unarmed unarmed suspect and i think that the continuous argument that it was being used to ensure compliance because graham was not in fact complying at the time go to the issues that this is not really an issue of fact this is an issue of applying the law of qualified immunity that the use of force on mr graham was reasonable and the extent that there's even a question as to that a fleeing suspect would not have a clearly established right after being given warnings being told he was under arrest and before the second hazing again being given warnings that another taser first would be