pulled away from officer way and then proceeded to enter into a residence with two on known individuals were located for purposes that were not clear to officer way at that time the undisputed facts show that d suppose that the officer impermissibly entered the residence under the th amendment without a warrant would that signal is that relevant then to whether he's permitted to record here girling contends that although he stepped out at one point to point at the truck he was inside the threshold when the officer asserted that he was going to jail an attempt to do in fact an arrest and i thought the district court said that was a disputed fact question so if we take as an assumption for a moment that the man was in the house when the officer tried to affect the arrest i'm asking whether it's relevant to the excessive force claim these turned out that the officer on this assumption was unlawfully in the house pursuing the doorway which is a public area so he can't leap from a public area to insiders residence to avoid pursued by the officer and therefore has no right to not be subjected to excessive force if the circumstances permit it obvious well that would be centeno but i thought the judge said it's a disputed fact question here and you're relying on the video i guess scott the harris theory that the video clearly refutes the district court's view there's a dispute but i was just taken for a moment the assumption that we thought it was disputed about whether he was in the house whether that might affect the excessive force analysis and i think it's possible i think  the in the doorway i'll understand what you mean if the door is open but the person is standing inside the home that is before the threshold of the door are you calling i'm not sure i understand if the man is inside the home he's not up to the the place where the door closes where the where the thresher what i would call the threshold if he's behind the threshold then at home at that point then is home are it wasn't possible on this video that the man could have stood there and then had to back up from there to close the door because he had to but when you watch it when you watch it you can see when you read along with the pass the money what they say heard that he did not make it inside russell and so after officer way grabbed his arm and said you're going to yeah ok i understand your position is the arm grabbing happened when girling was on the porch or at least in the santana threshold correct but the discord that that was a disputed fact so i guess way knew there were two individuals there is none of it is in the record that you realized it was a child but more to the point he doesn't know what mr earle i knew going to do now with two thousand and twenty hindsight it probably appears mr purling was not going to do anything and there was a our brave did way to arrest girling because girling wouldn't give his driver's license the actual tickets were issued for illegal parking and resisting arrest i girl gave him a ticket without a driver's license and you ever received a parking ticket without the meter maid getting your driver's license because the truck that mr girling was driving was registered to a trucking company  girling was the operator of the truck girling already said it was his truck early and said it was his truck so he knew it was the operator but at that point the identify him he didn't need a driver's license mr early for his name as well mr gurley didn't give him that the th amendment does not permit the sort of government intrusion alleged in this case to be plain we have here an officer of the state walking on to private property without a warrant and demanding identification papers from the homeowners chest in front of his nine year old grandson handcuffed and hauled into jail why did the officer take such aggressive action he suspected a parking infraction your honor this is not the type of thing the constitution cause nd this is an excessive use of force because an officer cannot peyser a citizen for exercising his constitutional right to simply stay home also wait counterarguments as you just as you've just heard our  account and specifically to the theory about a warrantless in home arrest it's well established and undisputed in this case that in home arrest must be supported by a warrant or as a joint circumstances and it's admitted in this case that there was no warrant and that there was no exit in circumstances officer wait testified that he perceived no exit can see that appendix for ninety eight and there's no argument in his briefing to this court that there was such an  that is waived so the only question for this false arrest charge is simply was mr girling in his home or was he not that's a fact dispute as your own as of already noted  district court found explicitly that this is a genuine dispute a fact that you go to the jury to see that appendix for seven thousand five hundred and seventy three quote the court found a genuine issue of material fact as degrees location when the incident occurred  aware there's no jurisdiction to review that specific determination the rule being that a rejection of qualified immunity defense is not appealable when the district court merely determines that the record presents a genuine issue of that trial based on that alone  the district court decision on false arrest should simply be affirmed the only counter argument that we have in the other side is that because of this videotape of the body can the court should invoke the scott exception two of the complaint alleges arrest without probable cause in violation of the th amendment claim that i see in the complaint the claim you seem to be advancing now is not arrest without probable cause unlawful arrest because of unlawful entry to the hall what do we do with the fact that that apparently was not pleaded a was argued below and whether or not the specific heading called a probable cause is not does not suggest that this issue was not before the court below a certain it was squarely presented to the court in the court ru on it that said we also do have a separate count of no probable cause being a separate reason why is that this false arrest charge i know i stand there but if you lose on that because there was arguable probable cause to arrest for the parking violation even though it was a misdemeanor an arrest probably wasn't necessary and that's not really the issue if there's arguable probable cause on that you'd be down to the entry theory and that's why i'm trying to understand whether it's in the case you say it was presented to the district court you think that's sufficient if it's not in the complaint believe that it was the category of a false arrest should capture what was what had happened here and the complaints paid to the requisite facts those facts and theories were presented squarely it's the district court the district court considered them and ruled on them so i think it's squarely before a as a winning issue certainly i think that there is a strong argument that there was no probable cause otherwise we got into this in our briefing pages forty to forty six but why it is that officer we had no probable cause to believe even a parking  n had been committed he had simply say it quickly he simply had never checked whether or not the street in which the truck was parked was own commercial or residential and so at the time he had no idea whether or not the truck was actually parked illegally there is a misstatement i think in the the briefing from the other side where they say that their offices are weights commanding officer had told him that this was the residential street parked illegally that's not true appendix one hundred and ninety nine an appendix two hundred and sixty eight we have testimony from the commanding officer saying that he did not say that he left it up to officer way to determine whether or not there was any kind of parking infraction officer wait this a commercial or residential street the very st piece of information that he received on the issue he was told this is a commercial street disregarded it and decided to make the arrest anyway so i think that even as a separate ground from the home invasion that we have here there's a no probable cause issue for that parking ticket moving to the excessive force claim and this your honour's have any other questions about probable cause this is also to a large extent turns on the fact issue whether or not mr girling was in his house at the time we have no dispute here that there is clearly established law that one officer may not use a  question becomes was he actively resisting or fleeing under this particular framing of the legal question and if it is the case as a factual matter mr girling was in his house and never left  refusing to leave his home for the purposes of a warrantless arrest he cannot be said to have been fleeing or resisting in any kind of meaningful sense if you could before them and would probably mean very very little as an officer could stand outside of your house demand that you stop watching television come out for warrantless arrest and when you decline come inside and taser you that's that's not the way the th amendment works and certainly in this case the courts jurisprudence on similar type issues duncan for example is one important case that comes to mind that was the case was very similar to this and in that case the arrestee quote step farther back into his house was part of the fact pattern   even if the court were to believe that that this was a clear flight case i think that there's still also curious stablish law that this sort of behavior where he's moving inside of his house not threatening the officer actually withdrawing from the officer it's not in public there's no danger of an escalating situation there is a purpose print case law saying that this is to suggest that this is simply too much taking somebody for in this particular situation under under the grand factors so i think to perhaps to sum it up here a lot of these disputes very little of this is legal maybe none of it is legal there is literally only factual disputes about whether or not mr green was in so unless the your honour's have any additional questions on this and maybe you know the rest of my time  proceeding is that you cannot taser a nonviolent suspect in this to mean it was not resisting or fleeing in that rd prong whether or not he's resisting or fleeing depends on whether or not he's in the house you know whether or not the santana situation and then the man tried to retreat or enough room the ops arguably would have a basis then to say that he was resisting and that there was some risk to the officer that the man could access a weapon or something in another room and that's why i wondered if it's relevant whether the officer should have been in the house at all but if you think that doesn't matter then maybe you're saying we should analyze it just as though he were lawfully there and we have to decide whether there was resistance the sent situation is a little bit different in that the person the suspect was in public to begin with and then fled back into their home and therefore the entry was permitted because this was a hot pursuit and trying to make an arrest and the subject did something that was resistance the officer may well be allowed to use force  perhaps i guess i'll pose that as a question would not be true well i suppose in your hypothetical we might assume that the officer was invited in for some reason we'll know just that the us at that there's no contention whatsoever that  the officer was in the house before he tried to make the arrest he was in the house legally and so as a as a factual matter it wouldn't apply to this case and either way but if he were had been invited in and therefore is was present legally and was asked to leave decided not to i'm not sure what the answer would be how they are going to act or if he was in there based on hot pursuit and then there were circumstances that just fi of force right so if he was in their hot pursuit that would be a santana situation i think that would be controlled by santana but i think we don't have that in this in this particular case  three case under have vs humphrey for a chart that would stick with your argument would invalidate the charge that you click guilty to in this case the traffic that he pled guilty to is that we cannot now claim that it was improper because that would invalidate the guilty plea that he himself entered to charge i'd say that i was guilty of it but weight had no grounds to arrest me at the time because you didn't know enough about it to arrest me and twenty hindsight we know that there probably wasn't a situation that was going to escalate but that's not how this court looks to that situation but i realize i'm not so i would ask this court reverse the qualified immunity by