incident our encounter with the plaintiffs was captured on video and so the question before the court is whether that encounter violated any clearly established right according to the court's precedent  here there isn't one that's not really yes not really the question it's not really quite the question under our precedent under again vs hartman which we decided to do years ago is whether the video recording of the incident utterly discredited the plaintiff's testimony in this case right now that's the test that the test is because the district court determined that there was a dispute a material fact here the only issue for us at least right to determine the at least the initial issue is determine whether we have jurisdiction to hear this appeal at this time and we only have jurisdiction under our precedent and supreme court precedent if the video recording of the incident utterly discredited the plaintiff's testimony right would you i guess would you agree with that st i understand the question you're asking your honor first of all to start with in which you were citing i think the rationale again in picky to jurisdiction and i'm quoting dockery cites the cases from the united states supreme court which was the case and the scott harris case where they reversed but gary we said about here's what we said about dockery demonstrated facts reaching this outer limit outer limit of the principles stablish by the johnson case it should be considered a rare case it does not apply where the video recording is subject to testimony do i have that wrong no your honor i don't think that the video is subject to any material dispute in fact it shows the entire encounter between the two parties and so i think that's the point can certainly review the evidence but the as a matter of law only comes in if the video itself is shows conclusively that there's no genuine dispute of material fact sheep just the existence of the video itself doesn't make it a question of law theory or honor and so frankly i would you know i would move on to the point that was actively resisting the officer at the moment that he used his know there would need to be a view of the totality of the circumstances and that would need to include whether you there was active resistance at some point use tasing with someone that is actively resisting so is there any case that says as a matter of law if someone is passively resisting that an officer is justified in using a tape passive resisting only correct i i don't know of a case that i can recall off and on but that's really not the argument here your honor and i think that also but it was interviewing the video which we've reviewed the video it's in the record and mr ferguson is shown with this hands up you're his car and his pants had fallen down essentially to the ground and he's standing there with his hands up at the time he is taste would we have to find as a matter of law that that video shows he was conclusively actively resisting in order for the officer to a taste i think the question your honor is is there a case because i want to emphasize that for op i mean to me and i'm not getting i don't know i don't i mean i'm sorry to interrupt you i don't want to get a straight and get into the qualified immunity legal test that the question for whether or not we have jurisdiction is whether there is a factual dispute about what happened and so my question to you is would we have to find as a matter of law that the video conclusively shows that there is no dispute that he was actively resisting at the time the officer taste him when his hands were up and he was standing by his car and this pants were essentially down on the ground so you could see he didn't have a weapon on him so no the court does not need to find as a matter of law that was actually resisting at the precise moment that the officer fired the taser i think that there is cases talking about the split nd decisions fact for a jury and i hear you saying look in to looking at the totality of circumstances the jury might be able to find a trier of fact might be able to find a taser was justified here but that's very different than asking us to find based on a view of this video that no other conclusion could be drawn your honor i was reserving two minutes per bottle me i respond your  disputed or there's a factual dispute for it right and i think what i want to emphasize to the court today is that the dockery made errors decisions didn't lead or did originally say before reverse determinations and also this video does not resolve all of the question even though it captures the incident it does not capture all the facts for instance the audio quality isn't pristine you can't tell   chase and he ran into a back yard a split nd after noticing that he was cornered he surrendered by raising his hands and saying that he surrendered but the court there found that all of those facts analysis and that ultimately it just places the situation the facts here just compounds too much to make it that there was any reasonable basis that spurred some calls that there are i'm including one other one which is a question of fact that i  i should also note that just specially just given the weight of this matter unfolded are certainly going to have a number of options available to him notably the court of also been consistent that mistakenly that the the plaintiff was armed and that belief could not be reviewed as a material disputed fact as a matter of law here there is no mistaken belief claim  that he stepped back and fired taser in one motion the intent of whether or not mr ferguson intended to surrender you know and even without saying anything there's really nothing on the video is not something that suspect high speed flight the united states supreme court reversed because there was a video showing what the what happened so the court could rule and should rule thank you very much thank