quick in this case with due respect to the district court applied the wrong standard of reasonable in this the court correct standard is whether a reasonable officer could have concluded that mrs moore jones was played this is fourth line from the bottom the court cannot say as a matter of all that a reasonable officer on the scene would have concluded that miss moore jones was plain and the standard should be good  law he determined that she had expired tags and registration that was expired he then came up behind her turned on his flashing lights across his car she did not stop at that point he turned on his siren and she feels a not stopped and flashed a spotlight into your rear dash and at that point she did not stop he reasonably believe that she me the question that the question is where in the in the totality of circumstances analysis does more force become reasonable well  of quick to my class don't i don't think well certainly if if anyone anyone who walks away from the law lawful command some force can be grabbed by the shoulder yes doesn't matter whether oh well i wasn't feeling i was just ignoring them because i don't like police officers well if it's a lawful command or reasonable command then you can use some force right why would she she pulled over to stop the row then she'd be radically full right back i think it's i think it's quite arguable that she wasn't fleeing in the context of apparently every other pit published pit stop case and shoot and she wasn't fleeing in the context of most of the of the felons with trucks full of contraband who get stopped from traffic tempted traffic stop and take off one hundred miles an hour through three counties yes that's fleeing yes i understand that but flee but but i don't think fleeing in this con in the excessive force context requires that level of my pit maneuver on the left side because we were on a service road and she would have spawn into the middle of the interstate so he recognized a gradation in the use of force and he said the only place where i could do the maneuver on the right side was when the exit ramp the wide exhibit ramp was there and it was obvious she wasn't going to pull over on it obviously it would happen again and i was confident i don't know that to me is entirely relevant access force analysis by a police officer on this scene or or viewing court well and so it did and it affects the extent that the way that i look at the word fleeing until she knew she was aware of the stop because in the course the district courts first opinion says and there was no siren because that was based on the twelve the sex and the siren was in the alleged in the complaint and then when the court g summary on a summary judgment record and everybody can see it's undisputed that the siren was on all of a sudden that drops out of the district court's analysis seems to me it's quite significant he he was making clear she was to pull over and she as i understand her testimony she admitted well she initially first sheesh at first she thought i was getting out of the way because i assumed he was after somebody else or do or on other business and then when he continued then when he stayed behind her with lights and sirens going she knew she was the target yesterday she didn't stop at that exemption didn't stop at that there's another spot  my view yes and it's a place where she clearly could have pulled over safely and it was reasonable for what i would take action until as i understand the facts and somebody can direct me until it was clear to the into that area because of others strands of other people so that he made the decision and we can't look at twenty twenty hindsight we have to look at it from him as a reasonable officer at the time that it happened other i won't quote you the cases you know any force is not justified against nonviolent misdemeanors you know we have that refrain several times in our cases what do you do with that right i understand that in those cases however that's i think that's quite debatable and then counsel's counsel goes into the arkansas law books and says it's still a misdemeanor to to to not pull over and on foot or in a car and in response to a command of to do so we're looking at the reasons for not forceful resistance of arrest where we're looking at a reasonable order  you you haven't you haven't touched the cases the judge burton started about with your answer to the case is that because this wasn't this wasn't violent as to any human being at the time of the pit maneuver and it probably wasn't  established prong indeed in a ruling on the motion to dismiss get it and then there was a subsequent motion for summary judgment and the court got into the the constitutional violation established well the bottom line is there's not a renewed discussion except you say that that refers to it i may differ with that but there's not there's no further discussion on viewed most favorably be your client at this stage of the case yes so why do we have to talk about the factor than for you to remind us what those are because he's raising could versus what the object leader that's legally leading that's legal oh yes that's a legal standard forget that he's wrong about it in the way yes there is with i mean he's right he's right that could is the right word for clearly established but the court wasn't discussing clearly established at that last decade that we should enforce clearly established doctrine with the with the rigor that they do and that's what we're here to do the standard here today is would a reasonable we're not we're not debating you're on i think we're not reno you haven't got a kit you haven't got any case here young anything but general principles in your brief every pit maneuver case is goes in favor of qualified immunity and you point out some reasons why they're distinguished distinguish will because they were high speed flights and this was factually different but you don't have a you don't have a good case the idea i don't think there is a case now i don't think there's a case at all  usually that means qualified immunity applies because of the policy reasons for the doctor respectfully and i disagree under both ak instant and shannon this court help the standard is and i'm quoting not receiving notice some kind of reasonable notice what would a reasonable officer have dot under the circumstances that's a yardstick why would a reasonable officer not have knocked my client into a concrete ditch at the time but well the problem for me is the district court used the absence of a case on point two to find that it was clearly established it seems to me it should be just the opposite if it's going to be clearly established there should be you should be able to to decide a case on point with similar very very similar facts that would put a reasonable officer on notice your honor maybe this is the first case with any kind of similar facts there are no other cases that involve a thirty eight in a fifty five clearly a nonviolent misdemeanor clearly not fling a rast case they just they don't get up to the a poet or i've already had some of my problem posing counsel was to give you some warning as to what what troubles me by the way you've argued this case this wasn't fleeing arrest that's that's only if you take a particular interpretation of those words this was a refusal to obey a persistent command to stop yes or every case recognizes that regardless of what the basis for the stop was you have to stop yes or no and if you don't stop some level of force may reasonably apply be applied to achieve  stop so that the officer can go about pursuing what the basis of the stuff was and the question today is we know what force was used was that is there room for doubt on the objective reasonable ness can the record viewing it and most that doesn't get you clearly established and that may get you that may get you the first prong at the summary judgment stage doesn't get you clearly establishing this this court is help twice both shannon and actions and  white versus poly is a more recent lecture and it it's been more pointed each time they blecher does on the impact on the rigor of the clearly established doctor but those cases don't overturn shannen  april or so whenever we finish briefing this case i don't think there is by i'm open to i'm open to being surprised in terms of actually sending a person had a cell phone and officer not in uniform not warning him i'm an officer you have to give me the phone because i'm an officer bullrushes this guy to take the phone from bands that was objective leon reasonable why same three factors non violent not fleeing not harm to anyone this court provides in that case you don't have to have a case on all fours and it doesn't make sense to require a case on all fours what if this is the first case what's the closest current case marshall versus west comes out of the district court of alabama middle this record alabama two thousand and eight that site is five five nine federal saw second one two two four they are the alabama middle district for found that the that is marshall versus west five five nine federal supplement second one thousand two hundred twenty four and was that a marriage decision or a qualified immunity decision that was a qualified immunity decision that was that was an issue same thing not i couldn't have known i had no way of knowing that knocking someone to a concrete ditch for a seatbelt infraction i believe t could have possibly been a legal there is no merit to that argument knockings onto a contradiction is clearly more than de minimis force as the court provided earlier it's always walking away from an officer and that officer grabs their shoulder or their hand that's one and i agree but this was not when you have you have to weigh the risk of the risk of injury from the maneuver used compared to the risk of someone continuing to flee in a car even at forty miles an hour into a town in the dark which is always dangerous it could be dangerous it's not always to wells because we don't know w what what what what you know this is this is why i qualified immunity is is granted in these cases because this this weighing is is very hard  objectively yes ron the officer had a good explanation of the force used the time he used it and why he used and i don't i have trouble seeing why that isn't sufficient under supreme court jurisdiction plus the absence of relevant cases will now you've given us one and the why you didn't give it to us a brief there any other i don't know what the court doesn't happen a lot why because officers don't usually not people in the concrete ditches to affect a traffic stop that's not a common thing and when they do do it often times they say you know what that was wrong and pay you money this doesn't have to go to a trial it's very hard to get has there has to be a lot of cases to get up there this is a rare occurrence which is why the answer here is the standard view the answer to because you think that as the supreme court has said that existing law would have would have placed the constitutionality of this officers conduct beyond debate beyond debate you think that's here i think this is absolutely be a baby there is nothing to mend a mess about knocking so into a concrete ditch fifty one seconds into a forty mile an hour pursue under fifty five mile an hour rope it have taken him two and a half minutes to get to the top he had many chances to get out there he was coached beforehand and reminded of it after the fact be mindful of the people who don't feel safe why did she not feel say there was a blue light rapist in the area using cop or cop lights to lure people into lowering their guard why might she feel unsafe maybe she doesn't want to get raped or have her daughter get raped that that could be a pretty reasonable reason to be afraid it's dark out it's sparsely populated the narrow shoulder that shoulder is narrow she didn't fall into a ditch for no reason there was a small shoulder there  is broadcasting all except for turning on her warning lights i am not clean objective lee there is no two ways about it or should increase your speed now she increase your speed from fourteen to thirty eight right giving credit where credit's due that is slightly more than double that's approximately twenty four miles an hour did she pass the officer was she literally joe pass and he was on the side she ran into that it was a mark or car or she could have seen it but she could have also been looking somewhere something else because she claimed she didn't know what she didn't know shit or ice and it was expired yes driving and then it became obvious to her that it was that she was the target yes and then she drove then the biggest deal the supervisor himself says that was done too soon i would have waited longer what more could we possibly need viewing the record in a light most favorable that trumps everything no it doesn't why not one other one other  note no reasonable officer would do this the standard is not no reasonable officer would do it the standard is would a reasonable officer have done that and those are two very different things and i don't think so that's not a quote that's that's the merit that's if you get judgment based on qualified immunity thank you there was no with it was it was well argued that excessive force cases are always difficult and that once again we'll take it under advisement and do our best