last piece on for argument is lennox versus miller and clark mourning one please the court my name is greg johnson i represent officers brandon clarke and thomas miller and i'm here to ask this court to do what the lower court failed to do in accordance with what is now settled law concerning qualified immunity arising out of the lawful arrest of this lennox the plaintiff on july twenty two two thousand and sixteen as i came to before you i realize that you know in this point in our history qualified immunity the law of qualified immunity the manner in which this court in the supreme court have directed district courts to frame the clearly established law question is probably more clear at this point in our history than ever before at least during the three decades that i practice and i think i've laid that out my brief what i'd like to do with my time is focus in on the public policy justifications for the immunity doctor in the st place and talk about how that specifically applies in this case to that surprised if with due respect or when i want to focus on is whether there are facts in dispute about what occurred that would give rise if proven to the claim that your clients used excessive one client used are undisputed and then there are certainly a divergent as to i think two relevant facts concerning the use all right and those are i think that the divergence in the record is the extent to which the plaintiff when she was handcuffed was successful in physically fleeing pulling herself away from the officer clark so we have two counts of that officer clarke says that she attempted to flee before he was handcuffed and once he handcuffed her standing up she then broke away from his grasp at which point he he took her to the ground that's officer clark's view for the purpose for the purpose of what i understand at least a view of the evidence that i think were bound to exempt one gun on top  put weight on top of her however that occurred yes and i think that's the that what i would say judge the nd disputed facts of the plainest version is that she didn't successfully break away he was too strong she tried to and so there's a  dispute of facts secondly as you just point out the manner in which they too end up on the ground is also in dispute the fact that he take down soft hand techniques or use the nothing else undisputed but yes the manner in which the takedown was executed and where officer she admitted in her deposition that she attempted to pull away but he was too strong to show she was unsuccessful in completely freeing herself but she did it mitt that she was verbal eat resisting non compliant and physically attempted to get district courts this years and below i think that's part of the erroneous reasoning of a district where below i think if you look at that portion of the judge's decision below she comments the judge below that that clarke outmatched her and that the officer wasn't injured and that there was there is no undisputed fact that she actually took flight and i would submit that that's not the proper analysis as this court has instructed in the supreme court has instructed that the qualified immunity analysis is focused on the decision making of the of the officer and to suggest that he needs to wait until she injures him or wait until she completely breaks away is not i submit is not the proper analysis i submitted we applied to the decision making process for the officer is that at the moment time that he decided as she is physically resisting whether she was successful or not what did the existing law by this circuit the supreme court tell a reasonable officer in his shoes that it would violate the th amendment to take her to the ground until he gained control of her so he could transport of the car i think that's the question and that question focuses on the objective facts the undisputed facts and what a reasonable officer would do in that instance and as i laid out in my brief and the court below didn't even attempt to find a precedent that would suggest that that on a reasonable officer in that circumstance you assign an area just to the failure of the court of the district court to do that other jurisdiction basis for my appeal is limited to that legal question and that's the that's the question number sending to the court for consideration well in i guess the corollary to it is that whether the officers actions were reasonably compliant with existing law when it was reasonable for the officer to believe that what he was doing the other officer standing by was doing was in compliance with with the law at the time and if i if i could do you agree then if if there are facts in dispute we don't have jurisdiction to hear this appeal you may still have a qualified immunity argument you just have to proceed to get it better fleshed out at trial one hundred jury may may award your client you know with all due respect i think i think i think there is a legal question based on the undisputed would agree that if there are facts in dispute that bear on the reasonable answer the analysis of reasonable that we would be without jurisdiction because that's a factual determination that has to be made by a fact or i'm trying to answer your question no i understand and take a shot i would say that as an abstract proposition you're stating the law correctly of course what i'm saying is that when you wind up the undisputed facts that lead up to that decision and then you look at look next to that what is disputed i think nonetheless that this court can in the lower court should have answered this very simple question as to officer clark let me just so so i think what you're saying is that you of you are willing for purposes of this appeal to  not to dispute a number of facts that correct and based on the basic undisputed facts for purposes of appeal do you think that there is no clearly established law that would have told either of the officers frankly that what they were doing the force used in that type of force the way that it was undertaken violated  constitution in a way that's absolutely my position the court below cited none plaintiff's counsel couldn't identify any and if i could just i mean we have all of this excessive force years crews police officers know that the for state and  not be exhaustive form for the legitimate purposes they are allowed to carry out and that's the long right absolutely all right you know and that's why you don't need a case on point that says well when somebody is fleeing away who's got a kid with their who's put in shackles and sadder because there is no case out there like that or if there is it's not it's not binding on these buoys officers that's actually true and that's why and motion practice below and and the judge sort of took me to task for it in the absence of a case that would have informed officer clark or miller that what they did cross the line if you actually look at what the the nd circuit rulings were that were available for a  reasonable police officer making an arrest like that they would suggest that their their decision making relative to use of force was absolutely comported with the th amendment you talk a little bit about the more recent supreme court use them and so on to see my i time but as to officer miller very little very little consideration was given for his motion is undisputed he used absolutely no force undisputed that the plaintiff described the takedown as happening suddenly no doubt about the fact that this is a chaotic fluid situation all undisputed facts so so he's fifteen feet away engage in legitimate policing by restraining the hostile portion of the crowd that's hostile towards the plaintiff and he has absolutely no opportunity  intervene as a matter of as a matter of the undisputed fact but more so to the extent that the lower court wanted to analyze whether or not officer clark reasonably perceived he was losing control of the plane if that's something that only officer clark could have perceived there's no way that officer miller could have perceived that he clearly is also entitled to qualified immunity on this record thank you jack thank you very much excuse me thank you very much it was like you and i will reserve decision in