clearly established on that date and yours it's important to note this event did not happen in the middle of a park it happened at a concert with the record suggest that it was as it was chaotic it was described as rambunctious it was the minor child out of the concert hall and puts or in the lobby she met me six having that seizure and then they put her on a chair as after that then she has another seizure where they have to restrain her in order to help her and you're holding your head and now you have all the individuals carol dillon here and there and in the middle of that comes maurice who then starts saying if you don't stop i time under those circumstances they're trying to get her to calm down to comply with orders from the opposite to calm down it large chunks stop having a grand mal seizure how exactly is that going to help you stop having a seizure the critical fact for me again viewing the evidence in the light most favorable to the plate and the one fact that really hurts you is that officer jila land told officer morris when he arrived that the mike near th was having a seizure it's not like he came on to the scene didn't know what was happening thought she might be combative and then decided to apply his  told again if you view the evidence in the light most favorable to the plaintiffs he was told that she was having a seizure and my question is the same as judge brasher is a judge will it goes if he knows that she's having a  seizure which is an involuntary physical event how could he reasonably use his taser against her three times under the th amendment you know that's why we decided to heal versus involved a police activity and there is no case law in this sort of situation saying that an officer that is either dealing with a medical emergency or an officer dealing with a combative suspect should have stopped what he was do that we're having a conversation here are you suggesting to me any way shape or form that because he's holding someone not able to tell somebody by the way last time i checked she was taking on her chest which is very near her head so explain to me in fact tell every officer that she was having a seizure that's why he's voting for him so she doesn't harm herself all this is going on in a well a chaotic sort of situation in which the crowd is coming out and in fact says you're absolutely correct but it is what the deposition testimony says and that's relatively undisputed that that he gave his mother did in fact make her way into the law there's there's not it's not but but the evidence in the light most favorable to the plaintiffs mr anderson is not that she climbed on top of an officer before she was knocked down and handcuffed right that's not heard the version of events that the mother is his version was discredited by florida where you had an officer involved in a beach strike that was otherwise preoccupied and you him that there was no operative g c in or similarly here adjusting gilliatt actually was focused on trying to deal with  it's chaotic would be inappropriate and particularly when there is not a single case looking at it from just a deal yet situation that indicates that there is someone that clearly established that he should have dropped the head of this and i don't want to speak in correctly for her but i think what she's trying to ask you is why couldn't officer deland have intervened by simply telling officer morris not to use the taser a nd and rd time on the child well i think from the st the nd time around or there simply wasn't time again th herself testified that they happened very quickly together it was one of the same and didn't but didn't more but again viewing the evidence in the light most favorable to the plaintiffs didn't officer morris tell th after the st tase if you don't behave and start to do what you're supposed to do i'm going to taze you again yes your honor but again viewing the number of light most favorable to the evidence is taking t again i think it's the timing and the fact that his focus was directed on on controlling her here to make sure she didn't whore herself that is the that's the mantra oh let me ask you a question so if this is a this is a matter that there's there is clearly established case law this is that you should not at today's this court has repeatedly said going back to oliver and cases and that probably that you should not hall my sister's having a caesar is a quarter point out they made their way into the lobby viewed in a light most favorable to the plaintiffs the lobby was not a chaotic scene d h which is the sister testifies and that's where the court's reference that's her declaration which is documents one hundred and one dash eight she testified that it was quite in the lobby they got to the lobby they play bass there in the chair she fell out of the chair into this you begin having another waited in front of the minor and said young lady if you don't behave i'm going to tasty that is important also to know that also moore's even believe at that point they say she was experiencing a medical emergency and the reason if that different uses of the taser to the body of a restrained senior who when viewed in a light most favorable to the point is was not in combat it was experiencing a medical emergency was never arrested and was eventually taken to the hospital is too hard can i ask you to stretch gears a minute and address a nd issue because i want to have the attorneys for the appellants particularly mr stubbs to be able to address it in his rebutt will for excessive force or failing to intervene for excessive force the mother those two things seem a little bit inconsistent to me and maybe you can help me evidence i believe if we go back to declaration we we see that the mother was jillian told officer physique as to quote get her mother never made it inside of center stage so the two officers outside with the mother outside the doors or center stage was officer physique us and another officer named morgan who actually administered the tapes to the kidney it is my belief based the bone the the evidence this that we have before us that office physique is is actually the person who sent the mother to the ground now he did not administer the hank of us because that was them officer us is entitled to summary judgment on the false arrest claim because he wasn't around how could he be liable for failure to intervene during the same general event i don't believe that he was given some region where he was awarded summary judgment because he wasn't around i think it was just the fact that he was not he was not held liable for knocking her to the ground because the testimony that m gave in her deposition was different than the just money on the affidavit and i believe the affidavit included a photograph of officer facetious that said this is the officer that that actually knocked into the ground think this record said that officer physique is was not arguing that as a factual matter he couldn't have intervened he just argued that the law was clearly is that is that right that's correct and he just judgment the way i understood the briefing in lower court was that most of the officer just argued that the use of the taser itself was not in violation really established law and they didn't have the most part make individualized and so the the individual events and also raised the issue of there's no clearly established slow but this court is clearly talked about the obvious would use force in that situation so even assuming that there is not clearly a step to slow in this circuit which there is but even if assuming for the sake of these arguments that there was not clearly established case low there was clearly obvious clarity that in this situation to administer a taser on a nine resisting not a combatant fifteen year old teenager who is being held down by five police him or anyone else or even the general public she was simply a fifteen year old child who had the unfortunate lot in life to be to be stricken with graham also years and she she had seizures during the time limit allowed for appeal so from march two thousand and nineteen just a little period after that there's been a state issue for the trial in this case then keeping in mind this this event actually occurred on january th two thousand and fifteen front i think were said thank you very much mister that there is no evidence in the record suggests that he even observed michelle how may not to the ground are being taste and therefore couldn't intervene and i wish i could was quick enough to find the thought notably we put in the original we will wait felt like we did not start the qualified me you just asked me half of the fan it was a case in the case of something i did i think you did except that the district court thought that you were only challenging the  nd prong of qualified immunity not the st prong you know other words you were challenging whether the law was clearly established that the use of a taser on ms helm would have been excessive force but you were not challenging the factual premise of the failure to intervene claim against i think that's what judge brasher was asking mr harp about a little bit earlier is that would occur or was there a different recollection from your perspective it could've been even if that were the case would the law certainly wasn't clearly established if someone didn't witness an arrest or witness a tasing that can't be responsible for failure to intervene in that situation even a nd prong of the test we could rely upon on behalf of lobster physique as in that regard and your honour's restorers i know there's been a lot of discussion today about holding down someone in hazing that person if they're having a seizure that's why we started this case of call would versus johns in this was she creating a situation when she's having a seizure on the ground i mean it's not what i don't understand that that's a very different scenario where you have someone who's  away i mean that's a very different situation is it not it's it is it is your honor but in this situation with t t age that she is still i mean they clarity or or was there some clear case law out there that indicated that a reasonable officer or a medical assistance and preoccupied with that let's still intervene it prevent the use of to prevent the use of a experiencing a medical emergency had not been decided by any of the circuits and that included the th circuit so to take that a step further and suggest there is a case out there before two thousand and seventeen that says an officer that notice that he is supposed to stop rendering medical assistance to prevent a tasing then your honor he's entitled to four or five immunity you're assuming you're assuming i think that having a case directly on point is the only way of creating clearly established law and that's not necessarily so i completely agree your honor but there's not even a case that is so clear in this situation as to give some reasonable measures to the officer in fact the th circuit they were actually evaluating whether the use of the taser itself on someone having a medical emergency and clearly a stab unconstitutional in two thousand and seventeen and of course they concluded that it did not and had not been by any circuit in the country for that reason your hon judgment is appropriate for our officer in we would have less than just were you worst thank you all right thank you very much mr anderson we really appreciate the argument by all three