reading police officers executed a warrant on mister proses apartment in redding pennsylvania initially fearing a break in mister pro that i did it is rd floor apartment on to the roof inflate to a nearby abandoned structure where we crawled out a nd story window mister pros was hanging from the window sill officer hey there punched him forty five times in the head the stunning disorient him causing him to fall break his right leg and hit his head knocking him unconscious at the time between where we're all we're all up to speed on the facts of the case thank you mister harrell what what i'd like to ask you is that the clearly established point  i think you to acknowledge that there's no supreme court case or rd circuit case that speaks to just particular fact situation right there ok so in order to to be clearly establish we've said there can be a robust consensus of lower court cases what what in your mind because clearly your position is there is a r somebody in the face when they're hanging two stories up or is it but what's the what's the main thrust for your position your honor it's a mixture of a kind of a hybrid case we think that  doubtless his general better read officer would know that you cannot punch somebody who's hanging out a rd floor window which constitutes deadly force under the circumstances d where that person does not pose a threat to officers or others  reason for the you know not to be flippant about this but you know there's the famous hans gruber falling from the dock tell me tower scene where the guy stole a gun as he's falling i mean if he still had a gun did he still pose a threat and could the officers have been reasonably concerned about this threat given that they had heard a call out about a gun no your honor because surveys are testified that he knew the pros or did not have a gun when he was hanging out the offended before they put themselves in harm's way and here we have your client's testimony that even he recognizes that they were trying to pull him up  into the window in the st instance why isn't it isn't that a very unusual situation we don't have any analogy in the case law of officers who are trying to subdue or defend copecks st hate held that the rd circuit takes a broad view of what constitutes clearly established rights that a reasonable fish would know of another does not have to be precise factual corresponds to the prior case and an instant case in order for a right to be clearly established i think that the taser case or the will part of this hybrid clearly established argument we're making where you know there's like five or six cases where courts concluded that tasing someone anywhere between i think some of the cases were six feet off the ground to two thousand and twenty five feet off the ground created a substantial risk to the person so i think those cases are sufficient to put the officers on notice here and i'll add that officer hayes or new  would injure himself if he felt he testified that he knew that at the time that mr prose was hanging from the window he also testified that he knew that if officer smith and himself let go of mister pros that he would fall and he punched him in the face four or five let me just shift gears for a nd and ask about officer white because there's a claim against officer white as well she's he is not in the position of officer hayes or he is is that officer officer white was not in a very different position from officer hayes was below mister prose and that's that's clear but two stories below right i mean there's a difference between holden somebody like think he estimated the distance to be at him feet which your honor i think is not that unlike the situation officer he's or faced an officer hazor was able to determine he didn't have a weapon i think another telling fact in this case is that when mister pros a initially crawl what it is not able to see the other side of the body from from standing on the ground that he's hanging out the window right and we have that the audio files here not think someone who just fall into stories would would want to or even be able to pull out a firearm the other thing is obvious or why it was only feet where mister from where mister perot's a fellow he didn't see a firearm in his ends when he was hanging from the window  that mister pros would have to reach down pull out the firearm he was on his back so we have to turn around to officer white and shoot him at that point and meanwhile there are four officers there they're feet away to have tasers one as a canine in one has a rifle if at any point mister prosser had moved in a way that suggests he was trying to pull a firearm it would have been reasonable to tease him but he did not move it was favorable to him so he did he wait and a indicate that in terms of the timing of things he was keen immediately almost immediately upon falling and what he said in a circumstance where potentially there's a that an officer have to wait and see if there's a gun pulled on them or if the suspect is has had the wherewithal to get up again and plea after a long change when well i think i think the cases where i understand force against officers at that point and all the officers testified what testified he didn't know he was he he managed to arm himself as he was running or at least did unre record is that somebody said he's got a gun and they in fact found a gun later so there's you know when you say he posed no threat at least for somebody like officer white on the ground not in the window he's heard gun isn't that enough to put him put a reasonable officer at a level of concern we're deploying a non lethal force like a taser is within the bounds of reasonableness even if we look at the facts on in the light most favorable to your client favorable to your quiet he was unconscious when he hit the ground and it was tasered while being conscious correct  on whether or not we're operating on a disputed facts sounds to me in reading this material like we do have disputed facts and since we do have disputed facts we are obligated to take them  on the face of the complaint right mister harrell and every reasonable inference so if we do that and you've got in the case of officer you put it investigator peyser we've got a guy who punches somebody in the face who is clearly not armed and who is in a life threatening precarious situation and whose punches stun him and cause him to fall that's the allegation and officer white circumstance somebody who approaches somebody who's just followed two stories sees them unconscious and tases them if we take it on that level because from the claims perspective i take it they think that means that makes no difference at all you could be really nice to me one minute and then punch me in the face and make me fall two stories the next and the fact that you offered me candy or you were good to me and helpful to me before doesn't really matter what matters is are you allowed to punch me in the face make me fall two stories and from their complaint that's what happened officer how hazor loses patience punches a hitting two stories up in his underwear and he's bleeding and you can have the officer say wars to the effect of screwed if you will fall we're just going to let fall you need a case telling the police officer you can't do that i think you do d your hon question was the facts are undisputed and the fact of what they were attempting to do was under your honor there's there has been no testimony that they were trying to question him from the window they were attempting to bring him in he bring him in the how is that relevant to the objective assessment not subjective but the objective assessment of whether or not it reasonable officer would believe a moment or two before you were attempting to be helpful how does how does that affect the undisputed fact well take that back because the number of punches is disputed but we're going to take it as five to six punches in the face because that's what's in the complaint how does how do you get around that fact tools scenario and say like who knew who knew that i could punch you in the face six times while you're hanging with your bloody slippery hands from the nd story window and you would fall who knew how does that work your mind think that's what it is there's there's nothing that would isn't like those cases where they've said you can't pay somebody when they're on a rd story let you can't pay somebody when they're on a bridge and they might fall if the if the aim and the professed aim was i want to stun them a somebody why isn't it precisely analogous i can't do something to cause you to lose your senses when losing your senses might cause you to fall and injure yourself or kill yourself why is a punching in the face him from a window to officers holding onto him which i think is an important distinction in that they were they had their hands on and when they realized they could not bring him in that is when they left th of serious injury as a result of the fall i mean i i think that see the difference as i said here is that the rest to mister pros was much less if they were able to bring him in they were able to get him in the window and they were both holding on to him they were both and they were both attempting to keep him inside and this is very different from the taser came and i think if he had struck quote him a little bit ago screw it you want to fall you can fall is there not some room for a fact finder to be looking at this thing and saying those blows came at a time and in a way where they were securely holding him this wasn't merely a stunning blow just while they had him securely held this was a frustration blow  that they were holding on to him and they only let go when it was determined that they would not be able to bring him in so i think  point it is it's not clear from the evidence or maybe you could point point to where it is experience that there is not a dispute about the sequence of the stunning blow versus when the decision was made to  just let him pull i think and as your honor noted this was all rapidly evolving when this happened within seconds within seconds i mean mister prozac exactly so  expect criminal investigator hey there at that moment to ascertain whether he was on notice that on this specific set of circumstances he couldn't attempt stunning blows to bring him in i think it is not it is not a question that on notice that his actions in this rapidly evolving situation would have violated a clearly established constitutional right why are those two things i mean is there really some difference in the  multiple blows to the hague versus the taser well i think there are distinct your honor because the taser cases are generally from at a distance and like i said before the plaintiff was being held onto he was being held on  presumably if he was hanging from the window and not being held onto he would have already fallen and like i said well no not necessarily right i mean he did he he was holding onto the window sill  that's that's sort of the crucial question you're saying it's undisputed that they were holding him while every punch was administered or that they were holding him securely while every punch was administered and that a question is is that a factual dispute or not unconscious is there is there anything in the law that would provide for a reason blaster think it's ok to tase people who are completely defenseless and unconscious  at that point he was but i know there's a dispute there's every every reasonable inference has to be drawn in favor of mister perot's benita send his assertion is i was i was unconscious now you're you're making assertions about the timing but once again isn't that a factual dispute his his bait his assertion is i was laying there aren't conscious any taste me your assertion is no no it happened so fast nobody knew your own conscious should a jury look at the facts and decide who they reasonable officer could think somebody has just fallen two stories you don't wait you don't look to see you don't check you just can immediately take this that that's it that's ok that's taken at this point were taken what you say are the undisputed facts undisputed that it happened instantaneously and there was no way to know that he was actually immobile it but even taken it in your way you're sayin that a reasonable officer would believe somebody who would fall into stories you can taser him instantly without knowing the extent of injuries whether they're even alive you just take them and then that it's not clearly established in the law that you should do qualified immunity but we're not just talking about a gentleman who just fell from a window we're talking about a gentleman who ran across rooftops broke into through glass into an abandoned building at some point was armed and fifty feet might be or are it could be i mean this was the nd story window it was a fall but i mean there was no no reason to think that just because he fell he was then going to become compliant stairs lead down to as your honor mention of basin or breezeway so we're really talking about i would say more than a story and a half at this point is an old row home so it's a pretty significant fall and also point out that officer he knew how high that was he went in into nine hundred and fifty two elm street through the front of the building all the breezeway he saw the stairs he saw the porch he saw everything that was there that could've been a hazard and even saw it when he was with mister perot's at the window all happening instantaneously after a high speed chase with a guy he believes is armed who's resisting arrest at every step and that have an aggressively resisting arrest  doesn't doesn't that all play into this circumstance which is not disputed that it a reasonable officer could believe i need to mobilize this person immediately there they're  position that we're getting from the other side is it happened immediately he hit the ground they taste him why taste what if we assume that's true so the white doesn't know it he's unconscious your legal position has to be you can't taste you have to wait and see whether he's going to get up and hold a gun or see whether he's going to get up and try to run you can immediately try to mobilize a person who has been fleeing and aggressively fighting the police sat right sure your honor yes but i think what we know is it's not a situation where he was fleeing and no maybe slipped and there was a split nd where he was like he was lying down i want to emphasize that he again that he had just fallen two stories and i want to emphasize again there were four officers there so only feet away from where he fell so we're not asking you know the officers to wait and see if he's going to pull out a gun what we're suggesting is which should have happened is  four officers there one or two of the officers should have walked the three feet i mean they testified they were three to five feet away from him when he fell so one or two of the officers should immediately gone to him and secure it is hands while the other officers were  standard well i think well i think officer went testified the situation was under control at that point and again i think i need to emphasize he did put his service pistol away and took out his taser so i'm not really sure that you know i don't think a reasonable officer would believe him to be armed to dispute is whether mister pros i did have a firearm on the on the roof but i think for purposes of this case it really doesn't frankly didn't matter because by that what for two reasons st of all because of the radio call so whether you're not you had eleven of the officer said he did it but more importantly than that by the time he was at the window it was clear to officer he is or he was unarmed and it should have been clear to reasonable officer in white shoes that he was unarmed can you clarify because the audio recording  be comprised of small segments but it runs continuously is that all in real time just that does that tell us it from beginning to end without a gap that's the full recording from when when it was picking up sound i don't know if it was i don't believe it was it was during the whole i mean the whole incident was nine minutes long we know that because the officers testified that they got there at six forty in the morning they executed the war and six hundred and forty and we have this or what can you point us to as clearly establishing for a reasonable officer that he used a stunning blows to the head in connection with that effort to pull someone  back out of harm's way is a reasonable if we think that being what's at issue here sure and we don't have any case law suggesting that punching somebody much less punching someone while trying to pull them back in a window  think it i think it is disputed at the time the officer has or punched him whether or not they were still holding on mister prozac even though they qualified immunity question you have to turn on the actual determination unreasonable even if it were holding on to him given that he was slippery given that he was hanging out a window i think under the circumstances punching somebody only to then let go of them is just one reasonable and i think that's clearly established by tennessee ris unreasonable the other cases that you've cited to us into the other cases cases from a district court where is the robust consensus of the type of authority we normally for clearly established in terms of presidential the court of appeals decisions of not supreme court decisions it would inform a reasonable officer if their actions were unconstitutional in this context sure