officers ban the holton use excessive in their media force against mr emmett and they're not entitled to qualified immunity on that day mr emmett was parked in his truck on in the middle of the road  being saw him activity in those lights mr emmett pulled over to the side of the road officer being approached they started having a conversation about mr emmett not having his driver's license on him and then mr wallet and then had a conversation away from mr emmett who had continued to face his truck with his hands of top of the roof after that conversation officer being came back over to mr emmett he attempted of the officers grasp said no turned around so he's facing the officers and at this point he either put his hands up into the air or he put on the back ones head in there lock them that part is a little bit unclear are those there was a little bit of resistance it was not to the point that justifies the use of a taser in dart mode and i also want to emphasize that the standard of standard of review in this case is particularly important brings his grass turned around but his hands up and just stared at him after the officer now officer stood stood ten to feet ten to twelve feet away from he backed up in other words i don't think specifically there's anything i can't get away when he twisted his arm he approached so yes the assumption is that he obviously back to what i'm saying right now is that you had to back away is that correct i again i don't think i suppose yes how did you get ten feet away  that grasp my client turns around and that point i assume the only thing on the record is there were ten to twelve feet away when they taste my client ok but how they got there i don't know but i mean they just walk refused to lead lay down one given instructions to do that to get on the ground and then also appellant was a big  guy bigger than the officers so if we say the officers can't taser in that context after giving a warning to comply or you'll be taste then we're going to encourage more more violent conflicts that then might have to be answered by deadly force i don't think we're inviting more deadly conflict because i think the officers would if they're not escalating the situation when times they may be able to deescalate so if anything this might be a good thing to rule mr imus favor in terms of the rest of the ninth circuit and the kind of message it sends because  we don't i think that well regarding mr emmett size he's actually about my size and height and he's got probably about fifty pounds less weighs about less than i do but he's been more muscular and i am but you got to remember there are two officers w there isn't going to be a particular case directly on point but i think brian is as close as we're going to get and brian we have an individual who's standing he's irate he's pounding on his chest and he's in his boxers he's shirtless and he's screaming  side of the member of poynton what we have here is july twenty seventh about seven eight months there where the officers have time to know that a taser in a situation does constitute interrelated definitely know by then or should know that use of the taser is a intermediate level of force that requires substantial justification and i guess i have a question if i'm assuming they they need to know that but then what makes it unreasonable search any case that's ever held that it's unreasonable to seek to deploy a taser under circumstances where somebody breaks  specifically if you don't comply you'll be taste there is no case specifically with all of those factors but i would point to a couple of cases of existed at the time of july two thousand and eleven not sure the put the officers on notice that intermediate use of force could not be used in this particular context now one is obviously the ground factors which are severity of crime in this case a simple mr mean their immediate threat he was not to be a threat he wasn't trying to leave he was in trying to flee he wasn't trying to fight he wasn't trying to argue he wasn't verbal he wasn't physical he wasn't anything it was just standing there and active resistance again there was a resistance of our positions i was passive the basket was not particularly bellicose certainly didn't rise to the level of being enough and if we look at anal violence call where the individual standing on the porch with his hands in his pockets and they told him repeatedly do not you know let me see your hands and with your hands he actually turned left one back into the house came back out still have his hands in his pockets the officers keep saying you a fourth member violation and then finally just on friday s b vs khamis san diego county it was decided by this court and there the officer shot an individual who was on his knees in this kitchen who had knives in his pockets and the the deceased actually reached for a knife and was shot the exact moment and this court still held the thousand fourth among the violations all we have here are series of cases with even more serious facts that mr emmett ever did just standing there where there was a fourth i'm a violation of some of these cases were already in existence in july two thousand and eleven the so that puts them on notice that they can't use intermediate force in this particular context and additionally the question of whether or not jeanne yes good morning your honor may please the court jeanne home and on behalf of the city of tacoma and the officers as the court has noted this wasn't a simple situation of the suspect simply not complying with an officer's commands taking the totality of the circumstances as the court must in evaluating the officer's application of force we start with an a suspect or an individual at the first contact who's acting very unusual he's parked after midnight in the middle of a major arterial with no obstruction in the roadway when he pulls over in the officer contacts him he won't make eye contact with the officer he won't hand the officer his driver's license he hands him a note with his name and number on it and permission from his doctor not to wear seat belt the officer points out to him he needs to have a driver's license and his response which they characterized as just a flipp comment was you should just shoot me then it would make it easier their attempts to minimize the significant impact point the officer now on the backup guy who came is the first to deploy against what the kill but it all the little scenario that you just went through certainly what the officer safety concerns a lot of people don't like that people get upset when they are confronted by a police officer i get they get nervous i even get you know the last time i was stopped for speeding ticket which was years ago i get real nervous i represent him and i still get nervous so i do appreciate that but from the officers perspective he's conducting a community caretaking type function he's contacting a driver who stopped in the middle of an arterial intersection the driver's response is not normal and in fact when he makes a comment you should just shoot me the officers safety concerns were heightened and mr emmett himself who has a background in law enforcement both as a military police officer and a lot of point you know like when i'm not here to cause you any grief i'm just here the i know what's happened here i'm concerned about your safety other safety but he said  in that kind of dialogue what the officer said was i'm not going to hurt you there's no reason to hurt you i'm not going to shoot you but he did ask him to step from the vehicle so he could pat him down for weapons because at that point the situation appears less than normal and mr emmett size is and issue officer being an officer nettleton are both about five foot ten mr emmett is six foot five six foot six and outweighs the officers by fifty pounds so the fact that there are two police officers there doesn't necessarily mean that mr emmett's size in demeanor does not present a potential problem to the op he gets out of the car and they pat and been passing down and they find anything any weapons well what he finds is an object that might be a weapon he removes it from mr and he doesn't complete the pat down and that's also important because he got news far as the left pocket finds the cylinder believes it could be a weapon removes it discovers it's marijuana he hasn't patted down the right pocket an officer being testified that his intent was to get mr emmett into custody and then complete the search incident to arrest as opposed to a pat down when he told mr emmett he was under arrest and placed his hand on mr emmett's hand and began to pull his hand behind his back mr emmett shouted no broke the officers grip at that point the officers did instinctively take a step back because you have a very large subject who is behaving abnormally who's made comments about shooting him and who is now physically resisting the officers attempts to take him into custody they cited him with a taser and so the officers did consider and in that employ less intrusive alternatives before deploying the taser they went with physical or verbal commands they sided mr emmett with the taser which places a red dot on his chest and in the officers testified often times that's enough to gain compliance when the subject realizes he's being cited with the taser they gave him multiple commands to get on the ground he did not comply with the officers commands and they told him express to that he would be taste if he did not get on the ground at that point officer nettleton deployed his taser mr emmett reacted by ripping the taser probes out of his chest hurt well it does but the thing that so surprising is when deployed in mode using the darts it usually interferes with muscular control neither officer had ever seen a subject pull the taser darts from the chest officer brain thought perhaps the darts had not made a proper connection he deployed his taser mr emmett pulled them out again at this point mr emmett started moving towards the back of the truck the officers haven't finished searching him and they haven't searched the truck for weapons and he is ignoring their orders with respect to the qualified immunity that the district court's determination that the deployment of the tasers was appropriate and reasonable under these circumstances should be affirmed with respect to qualified immunity the only case law that existed in july of two thousand and eleven at the time of this incident was bryan brooks and matto swann in the ninth circuit regarding the application of the taser this case is different from brian brian did not involve a out but they were not actively trying to take him into custody at the time there was no physical interaction between mr brian and the officers before they deployed his taser that's very different from the circumstances in this case in brooks and might was very agitated brian was very agitated mr and it's breaking free of the officers graps especially telling the officers no when they attempted to take him into custody put him into a different circumstance than the plaintiff and brian then you have much toast one where the victim of a d v called is taste in dart stun mode which as the court has acknowledge is an intermediate level of force for simply raising her arm when the officers are going to take the court found in matos one that was an appropriate application of force in brooks you have a pregnant subject who is refusing to exit her car refusing to sign the traffic ticket at this point the taser was used in a drive stun mode as opposed to the dart mode and the court found that was an appropriate application of force to it wasn't until several months after the incident here which occurred in july of two thousand and eleven that the ninth circuit issued mottos to which took a different tact which reversed the finding as tomatoes one in brooks and those being reasonable applications of force but still found that the law was not sufficiently established under the facts in those cases at the time of those incidents to deprive the officers of their qualified immunity with respect to plaintiff's citation to young vs city of los angeles that was the case where in the ninth circuit held that in the application of o c as an intermediate level of force that to post states our incident the district court correctly determined that the initial application of the taser was not an unreasonable application of force and with respect to the qualified immunity the court said while the because we did take plaintiffs facts for purposes of this motion and for the purposes of appeal and so plaintiff says i did not attempt to assault the officers when they grabbed my arms to get me into custody my arms were in a position of static resistance so we accepted those facts for purposes of the motion for summary judgment the district court said arguably under those facts perhaps the application of the o c spray and the baton strikes would be excessive but those are also intermediate levels of force and there's no case law that was desired prior to july of two thousand and eleven that told the officers if you can use one level of intermediate or one type of intermediate force if that's justified you can't use a different type of intermediate force the district courts that specifically spoke to why an intermediate use of force can be used and there are several brian smith versus city hamet headwaters was this county of humboldt which was a peaceful protest case where the protesters were pepper spray that  aggressive if a person is not attempting to flee a person's off threat to immediate immediate threat then your body and if the person you know isn't a felon is just a misdemeanor then those circumstances do not warrant