mottos books case cited by paley do not squarely govern the facts in this case nor that do they establish beyond debate what the officers use that the officers use of intermediate level force here violated a clearly established rate therefore based on the status of the law on march sixteenth two thousand and fifteen every reasonable officer would have believed that it was constitutionally permissible to utilize intermediate level force on a non compliant suspect in the middle of a busy six lane roadway who was now busy six lane road with what was most circumstantial at the actual time of the event had traffic been  that traffic traffic was stopped and i think this is base obviously based on the officers testimony however traffic was not there you know we would submit that traffic was not being obstructed there was no officer out by their own volition that motorists had stopped and work and were ok so what that does that change your argue let's assume taking the light faction in light most favorable there was you didn't have to use force to get him out of the way of did removing this person from the flow of traffic was not a justification under these this set of facts focused instead on the other factors why did why do they allow the use of an immediate force he's not armed not threatening under individuals what is what's the justification for the use of an immediate force under those circumstances if we look at the facts and again so yes conceding that he on it's tough for me to concede we don't know me and i may well be may well be that if we if you if you went to trial you'd win on this issue that issue but at least there's looking at the summary judgment record it appears that the traffic issue had at least been temporarily that well could i could i also submit though that officers that come to the scene later say that there were cars moving through the side oceanside of the lane and that there were cars  that there were cars backing up and so you know we can't we're somewhere talking about what those front cars are doing but we won't concede that there won't aren't cars that can't go around there at intersections so there's another there's the intersecting street cars you know and i'm patient driver so what you know there's no emergency right will so we face basically these mr howlett he's disobeying officer commands are saying get on the sidewalk get on the sidewalk that doesn't work they say for about two minutes they're trying to grab him but he keeps you know running away so they can't get a hold of him so then they're giving him verbal warnings multiple verbal warnings we're going to deploy pepper spray they eventually did deploy the pepper spray multiple times  and that is ineffective you know for whatever reason has no effect if the doesn't help to incapacitate m r help them to gain control he's still running back and forth so that at that point they give office case scenario when you deploy a taser the pronk stickin to the suspect and then they're there's a tech temporary five second burst and then they they fall because they're you know incapacitated the large muscle groups contract and they fall that did not resistance would be you know just somebody laying on the ground or like protesters not reacting but this in this case he's physically running disobeying officer orders and running back and forth away from the officers in the middle of the road circuit jones versus las vegas metro police department and this comes after you know the facts in this case this court this court this decision was from october twentieth twenty seventeen but in that case an officer pulled over routine traffic stop pulled over the suspect ordered him out of the car to pat him down for weapons he obeyed then he started to turn toward the officer and in this case similar to this in jones similar to this case there's a large i guess there's a size discrepancy and so the officer said the plaintive was much larger larger he actually drew a firearm at first pointed it at jones and ordered him to turn back around so  and the officer calls for backup in the meantime he pursues jones and with picks up pulls out his taser and used it to subdue him and the court the ninth circuit found in that case based on these  facts the officer believes something less than deadly force was justified so he uses taser to subdue jones this decision was consistent with our case law as we've held that the use of tasers can be intermediate force using a taser to stop jones and place him under arrest was reasonable under the circumstances and that was a routine traffic stop but wasn't as i recall jones i mean a record correctly it was a case in which the officer was trying to arrest someone for cases i think this case is i think there's less compliance and more resistance and whether maybe what resistance there's no threat to the officers here in jones the officers right next to the defendant if you will the petitioner and  petitioner the officer has some reasonable fear that if the if the guy doesn't listen to his commands they maybe end up being some sort of physical confrontation and then he apparently has cause to arrest or detain him and he runs no different in this case where you've got what's clearly a mentally disturbed guy in the middle of the road and gets proper sprayed a whole bunch of times in tears twice well actually in jones he said it's the court i mean from the opinion it says he sprinted away the officer calls for backup and pursued jones so he's pursuing him and then he decides to deploy is taser to stop him from from fleeing and then you know and so again we would submit that he is he's fleeing back one officer would come close to him that he's running in the other direction and other officers there and part of this you know we can't dismiss the size this the size disparity officer critchlow it's in the record she's five feet tall one hundred thirty pounds and then officer chung it's also in the record that he's substantially smaller than mr heloc and they're both getting fatigued at the end of this officer critchlow testified that she was out of breath and like drenched in sweat and so that's a that's definitely something you know that factors into all this because they're not left with many options the pepper spray isn't working and so the i mean other than let's let him just you know run off and continue running in the road or i know what you want me to ignore them but they had to do they had to use you know use some kind of force i mean obviously not lethal force but in this case is there a distinction among your clients in this case you don't argue in the if you submit there is no difference among your clients one of the mickey says well maybe not maybe the guy who shoots to the taser has a higher level of responsibility in those who just use the pepper spray absolutely i mean obviously the court you know they're both in that category but it feels that there's a visceral reaction to the taser so if there is you know it's not going to be based on the case law as i said there's no case that says you can't if there's no case use that says ok you can use intermediate there's you know we would submit that that's not the situation in this case and that but not describing the situation in this case i'm just saying that we know an accuser sometimes kill people and if that's the new law that you know the ninth circuit wants to make today that that hey a taser is absolutely you know you can't use a taser on a suspect that is you know like a misdemeanor suspect or a suspect that doesn't have a deadly weapon then you know that's the that's what the court to sure you understand here the trial judge looking at the facts in the light most favorable to the nonmoving party found significant factual disputes that did not enable her to determine whether the officers were entitled to qualified immunity that in a case where qualified immunity was not asserted at the outset we did a lot of discovery you have in the record the depositions of the officers you have expert reports you have an enormous record here and despite that the judge found that there are significant facts that she couldn't resolve for the purpose of determining whether qualified immunity existed or whether it didn't and she had crossed motions on that issue i don't think that anything has been presented to you one that warrants this appeal or two that certainly warrants that that finding be set aside or altered in any respect i do not agree that there is any basis for differentiating these three police officers and their actions and let me say that originally if you look back you'll see we sued i  least two other officers who were there at the scene and we dismissed the cases against them after we took their depositions but these three officers all utilized a form of intermediate force and you wouldn't make any distinction between the two forms you know not in this trying to move this move your client away by or get him to go to the server by pepper spraying him and it doesn't work and except for a moment judge fletcher's description that well it's an intermediary use of force more dangerous use force we don't have a very many cases and i've seen where somebody dies from pepper spray there's no distinction to be made between the two and no because this court for a long time now has classified both levels of force as intermediate and in both instances as required the officers by virtue of their training in the regulations that are in effect he utilize a process of determining whether that force appropriate and the criteria are the same and in this case as you've seen and as i believe is the case here there's no evidence that mr halleck was committing a serious offense there's no allegation that cases where that factor has arisen starting of i would submit to you agree vs connor it is with it within the context that you have a dangerous person who is running away and poses a risk to the public of committing other crimes and for that reason you may need to shoot him with a taser or a gun because he poses a risk to the public now in this context my client was not doing anything he was just simply evading he made no effort to escape from the scene or to pose a risk of harm to anyone else and so in our view that factor weighs against the use of an intermediate level of force the police  yes absolutely senator media useful no it's not that's traditional force that's basically using a means to control somebody who needs to be controlled because he's engaged in conduct for which the police have been called to alleviate a situation again focusing on the pepper spray isn't isn't a defendant more likely to be injured by the tackle than pepper spray that may be the case but tackling somebody is not an intermediate level of force police are allowed to use physical force to constrain or restrain or push somebody out of the way if that needs to be done and if that happened in this case we wouldn't be here but that's not what happened they repeatedly shot him with a pepper spray repeatedly shot him with a taser and cumulatively caused his death it was a homicide according to the medical examiner now again each one of those incidents as a homicide according to the medical examiner simply that  he was killed by a person that's right that's right doesn't say whether it was justifiable absolute that's a tribal issue we're going to have to try that issue but what i'm telling you is that not only cumulative but each individual act by which a police officer used an intermediate level of force has to be adjudged and evaluated according to the criteria that this court has established in matt tose with respect to the tasers in two thousand eleven and in the headlands case which i think was two thousand and four with regard to pepper spray and what and what are succeeding and there is no doubt whatsoever that these police officers knew or should have known by virtue of the case law by virtue of the regulation of a hollywood police department and theoretically by virtue of their training that just because somebody is running around and ignoring their commands they cannot resort to this level of force made a difference if there were traffic moving through there i don't think it would have made a difference per se but it could have if there were specific examples of conduct by mr holic by which he was in danger in those other members of the public that would perhaps change the calculus because that again addresses the criteria that are applicable to a situation where this kind of force is used but there is no example of that there's not even any example according to the the police officers that they felt that he was threatening or in danger in them one of the officers the young woman testified that she was frightened of him because of his size but you know what that goes with the job he did not attempt to hit her he never did hit her all he did was a vague her and ignore her commands and again the testimony will likely be a trial that he was unable to comprehend or understand her commands because it was under the influence of drugs and he was mentally ill but that doesn't entitle the police to resort to this level of force and no justification or excuse that has been given for that whatsoever lastly what i want to suggest to you  you have a suggestion that the can sell a case recently decided by the supreme court and somehow in some manner of fx this calculus and the way you want to view this case we disagree strenuously can still involved a case where a woman had a knife in very close proximity to somebody who the police officer perceived was a didn't wasn't in danger of being seriously harmed and the police officer then shot that woman from a distance nevertheless but nevertheless used deadly force in that situation and the supreme court said that the officer has qualified immunity now i might prefer the reasoning in that situation and that the analysis go a little deeper as the two dissenting justices suggested but there's no way that i could argue with any candor to you that the police officer in that situation acted on reasonably seeing and perceiving the threat that he saw on that occasion in this case those facts have nothing to do with our situation there was no perceived danger there was nothing that justified the use of force here for somebody just simply because he was in the roadway you address the jones case you're sure i would be happy to have you rely on jones because in fact in jones what happened was yes this was a traffic stop man got out of the car police officer felt threatened the man ran and then apparently the officer ran him down and teased him the man was running away and then he was teased by the police officer in that case as i read the case a panel of this court said that the conduct in the use of the tas arizona which was decided just a few months ago and i would commend to you the analysis in that case because i think that cally that case is right on in every respect that judge did what a judge ought to do when faced with a motion for s judgment on these grounds that case correctly utilized the criteria which already existence and have been in existence since the on bank decision of the ninth circuit in the matter was case with regard to the use of tasers something that the police officer would have known that he shouldn't do but we've known that now since two thousand and eleven and i think therefore it's there's no argument there's no credible argument here for qualified immunity based on the state of the law there's qualified there's no argument that i think it be justified based upon the criteria for the use of force repeatedly in this case and that we ought to at a minimum be entitled to address these matters at trial before a jury thank clearly established law in this case and none of those cases put it beyond debate that the force utilize here was excessive and even if you know we can see that the roadway is not a factor in this case what distinguishes the facts in this case is that the officers painstakingly took other attempted to warn attempted to you know given verbal commands and he was fleeing you know this is not a static case that's how the court described this the facts these are people that are contained they're not outside they're not running around they're not a danger to anyone else so these officers you know acted valiantly in attempting everything they could possible that you know verbal commands pepper spray until they finally you know had to attempt to use the taser which we would submit was ineffective and so you know for talking about the jones case you know that case it's almost exact it's almost the exact facts factual scenario and to rule against us in this case this court would have to essentially overturn itself in the jones case as to that point where he he tasers him when he's fleeing and and i want to be clear so what's the so what was the holding  in jones the court held that it was reasonable for the officer to tase the suspect mr meehan or traffic stop suspect when he when he attempted to run away from there were other things that happened in that case because i'm out of time but there are other things is that there were other things that happened subsequent to the facts that i argued the court said that at that point as to the point in the interaction with the officers that that conduct of to tase him at that point was reasonable then the subsequent to that there were other officers that arrived multiple officers teasing him for over ninety seconds nonstop ninety seconds and in most i think it was multiple like someone using seven three seven three ok afterward one zero one two three one one two three and the portion where sighting is actually at one one three zero so perfectly and i come back to the question about differentiation of two different kinds of force is it your position that we should not distinguish between the use of to use or and the use of or spray in this case in the order we should distinguish i think that if the court is going to you know if the court takes your view that this is a national intentionally lethal absolutely if then then you would have to you know distinguish because between your pepper spray and and but if you talk about the actions of the individual officers and yes absolutely i mean that the officers that only use pepper spray should be delineated from the officer that that deployed a taser and there is a different case law but you know it's