and killed by some rogers late april rogers police officer after an encounter with two others the theory of the case and i think it was not completely recognized the los angeles county versus mendez case from the united states supreme court on may thirtieth and that court remanded the case back to the court of appeals  cause it recognizes that damages for the wrongful death could be recovered if the wrongful death was proximately caused by another was the ninth circuit analysis that with her well the court didn't didn't i think the i disagree with your honor but i thought amanda's clearly said that if the excessive force itself was not unreasonable then you you can recover for damages caused by that act if it was approximately caused by a violation of the fourth amendment or now you're saying here here there is an appeal for forget the shooting except  was a unlawful use of force it was pointed out that all of the officers recognized that if the t was unsuccessful that they would likely have to use deadly force to resolve the situation back grab some water your honor  that at it's at the end of the opinion in section three where they talk about you know was it proximately college well no movements threatening officers other cases where the court is upheld tasing well i'm i'm just i'm just looking at what the district court said about the tasing the district court early in the opinion and recognizes that both the tasing and the shooting were claimed to be excess force but i thought the court and substantive ruled on the merits of the factors which this court most recently in tight on versus robinson identified in that no judge welcomes on that panel and believe descended in part from parts of it  but the court recognized that you have sort of three you know parts none of them out weighing the other being dispositive completely the first would be criminal law would be resisting arrest is for you that we're somebody is told they're under arrest and they are being handcuffed and in our fight you know submitting to the handcuffs or by having to keep not putting their arms back or jet rejet resisting it being put back so she  say that what she may have committed at that point in time when she was tied was disorderly conduct and public intoxication both of them not misdemeanors under arkansas law she had not been ever told she was under arrest she was told to by clifton when he cheney and the store th proximity of the officers and two restrooms this is exactly the type of tense uncertain and rapidly involving situation that justifies the use of force when a suspect poses a medium threat to safety well there and then he can close officer charleston's attempt to tase his frederick did not constitute excessive force and did not violate the proper fourth amendment prohibition against unreasonable seizure the court having determined that at the phone calls to the place legend that she she that when one officer clifton came she backed into a corner and held the knife she had already was already in that corner before officer placed in ever under stand the record and moving her purse around in there successfully deflected one of the guards so she wasn't taped which permitted her to continue welty to attack more readily argue could argue your honor as a result of it she had a reaction to run to get away because that one of the provinces did hitter in the chest and they also said that she let out a yel at the time the taser hit or so did you know was it reasonable to taser when they also know that there was a reasonable chance and torkel sen away and then the night of course is coming out or has been out the whole time and then misread it flips it open the store clerk says she's scared of miss frederick's actions the store clerk says that she was frightened that miss frederick public place she was near bathroom doors which may to some people think not to be a big deal but when you're police officer you always have to worry about every possible scenario or that every lease made you can  draw to and this is an area that it know if anybody is in the bathrooms and just books point that out correctly too so considering that miss frederick had a knife was refusing to drop it was acting the way she was acting and it's all in the video you need to said something that's important for this case let's just assume that the tasing in this case is unreasonable which of course we the citrus league do not but this course at tatum's right to be free from the use of pepper spray under these facts was not sufficient definite a reasonable officer in robinson shoes couldn't believe he was not violating tatum's right by pepper spraying him because tatum was angrily are great arguing and was warned before the pepper spray was used so in that case the officer was given qualified immunity to me and i'm obviously i'm here to argue this point the same can be said here that if it's not clear that you killed that you can't pepper spray an individual who's merely  arguing and refusing to comply or angrily arguing and given a warning and you certainly can't found officer torkel send liable because he tasted a woman who had a knife in her hand in a public place after he warned with the person holding a knife not trying to get away and didn't respond to drop orders to drop the knife for three minutes before he was being ba what our expert witnesses said it was a reasonable in the ny circuit also said that where the experts in the glen case said that the use of the beanbag gun in that to use it that quickly with the add in is this court said i think full regal what's your response to the argument that even if you we assume that they should've waited longer that it was not correct established and under these under this situation what's the closest case from our circuit would put an officer on reasonable notice that this was this was i think illegal conduct i think the breeder case you know talks about it the facts of the other cases where the tas jeeves with a knife situation in all of those some of them where they granted some rigid judgment qualified immunity was that the person had made an overt movement lawyer forty two forty three years that litigated civil rights that you can take even more than theories of towards you know into your nine hundred ninety three talkbacks it's now they've done it with damages and some others but i don't know