other defendants had raised qualified immunity as to the other counts but he did not what is the significance of that and also to the extent that qualified immunity goes to the federal claims how does that apply to three actions but with regard to claims for civil down damages in general the us supreme court has been fairly clear on that point so it would protect deputy mark richards and the claims not just with regard to ninety three but also the in my notes i don't have it in my fingertips if it's ok i'd like to address that point and i thank you i certainly will have an answer for you with regard to the his search they say with that question as it relates but my understanding is that as we've been proceeding on this case that he was moving for summary judgment on all counts against him for civil damages that would also poland the government and the superior court when it comes to the claim against  are moving forward with regard to qualified immunity under entirely different circumstances here at the summary judgment stage as opposed to the st time we visited this court at the motion to dismiss stage at that time we were constrained to the allegations that were made in the plaintiff's complaint this time agree that as we're also an interlocutory appeal we don't have jurisdiction to consider whether the district court identified the correct set of facts that the summary judgment record is sufficient to support the only question  harris has suggested or has stated that if the set of facts put forth by the district court is blatantly contradicted by the record on its face then the reviewing court on appeal me review and they review the record to know  to decide whether or not the alleged disputed facts are actually in dispute let's let's look at the facts in that as the district court to describe those and most favorably to the plaintiff here and  that seems to suggest that page nineteen of the district judge's opinion that the door opened that defendant richardson was startled and knocked off actually feared brings life it is it the defendant's position that if in fact he didn't even have time to perceive thompson in the doorway and shot at him because he was startled that that seem reasonable use of deadly force your honor that's not the question that let me answer the question st it's our position that yes even if he was startled that would be a reasonable use of deadly force given the facts and circumstances going into this addressing the surrounding the situation surrounding the facts identified by the trial court the two renditions on by the district are on page nineteen  his testimony is deposition actually says that so the factual basis in the record for that is where the or the district is getting that premise is contradicted by the plain terms of what the court actually cited but that there after that is did he tell you that he saw gun you tell you that you saw the weapon and that he got a call and he wasn't able to confirm that even that was related to him as part of that report  what is the question was how would you frame the question of lying on or has to be specific rather than general so we're starting with that nd prong which is whether or not the right was clearly established the clearly established right that we're looking for is under these circumstances where there was an arrest and outstanding arrest warrant for l t where deputy richardson undisputed it's undisputed that he believes that l t might be armed where else he was  rummaging through the house and not obeying instructions and where the sequence of events was less than a millisecond what a reasonable officer in that position with that knowledge have known that at the moment that he discharged his weapon at the that's assuming that the officer did not actually say that the reasonable officer did not actually see the suspect and whether the suspect with in fact armed or not it doesn't matter whether he saw it whether that the suspect was armed or  door was thrust open he was assaulted with the door i mean it had him and he wasn't expecting it he believed that that in his words l t got the drop on that the plaintiffs was trying to kill him is it is it enough for an officer to use deadly force not constitute an excessive force to believe that a suspect might be armed without verifying that the suspect is or without even perceiving whether especially with people in different locations will will allow some extra time to both sides you know five minutes it will be the same for the others thank you given the sequence of events and how quickly the unfolded deputy richardson was constrained by the knowledge that he had the reasonable belief that he belief reasonably based based on the mother's statement that there was one recent social media posting a what was that enough to give the officer officer richards and the other officers a reasonable interchangeably officer paris who was at the scene who had spoken directly with the mother officer paris is not on trial and the question of whether his belief was reasonable is different than the question of whether deputy richardson's belief based on  unlocked the door with his left hand and was signaling to marshall a teacher there as he unlocked the st lock i was preparing to unlock the door and conclude on locking the door and open it with the door knobs out that would be my he didn't know what thompson's intentions were what he knew was him as he states on page twenty five of his direct examination is that he was hit by the door and then shots were fired might be significant but that's not what what deputy richardson testified to he did testify directly that he was in fear for his life that he was in fear for her deputy sheriff's life it doesn't particularly matter whether he knew the plaintiff's intentions or not because the question the pivotal question is not whether it was reasonable from the victim's point of view and from what the victim knew the question is what it would have been reasonable from an objective reasonable officers perspective in  richardson shoes so what did deputy richardson know and at the time we know from the undisputed facts in the record that he knew and believed that the plaintiffs might be armed that the plaintiff had been beating arrest that the plaintiff was not following directions that the plaintiff's mother was afraid not only for her own safety but for the safety of her other son who was in the home with her and that everything he was surprised with the door when it is salton him and hit him and  he was because he was in fear for his life and struggled both of those things he discharged the weapon those those are two different versions of what happened from different parts of the test any in fact different locations an affidavit for example versus a deposition versus his contemporaneous record to a supervisor and those are credibility determinations that could be left to a jury the case were to move forward given the search some of the statements that  richardson was startled and that he was in fear his life the record does demonstrate that while he said i believe he have the drop on me and he believed that he was trying to escape he didn't know what else he was actually trying to do but that doesn't matter so even if those that i guess the ultimate point here is that even if those are disputes of fact they're not disputed material fact because either way on either set of record the way might be armed and we that's our position is that's enough on the nd point with regard to what richardson saw whether he was charging through the doorway or whether as the district court describes him as having fallen through the doorway we know from the record that death deputy de sugar actually testified that he didn't see the suspect or that he didn't see l t until after the shot it fired so he didn't see whether he was charging through the doorway he just saw him after the shot  and fired and he fell so the record the guckert however does show the deputy richardson said he was charging at me i was in his way i looked like i was in his way and he was running which is consistent with the allegations made by the plaintiffs themselves in their amended complaint that l t was attempting to run past the marshal he says that in one place but in his deposition testimony he says the shut the door opened and then the shot went off and it was it was  find that those two versions of events are inconsistent and make her inability finding as to one of them knowing on her i think a reasonable jury could only find that based on either person of events that  richardson acted reasonably in circumstances one more question on this issue and again i'm keeping on eye on the i know i'm way over to his will we will make sure and not the other  with either what the u s supreme court is frequently done has assumed they've assumed argue i know that a constitutional right was violated and move directly to the nd prong which is whether or not that right was clearly established as i began with we're not conceding by any means that there was no constitutional right that there was a constitutional right violated we firmly believe there was not a constitutional right violated but if the court were to choose one to begin with it could begin with the nd column and on the nd th nd given the cases that we ask you to be prepared to address that is cases where there actually was a weapon but it was found to be an unreasonable use of deadly force where the where the weapon although in hand for example  officers that were apprehending him but he was not armed they nevertheless and the court noted there was no threat of danger he was walking down the road with one hand in his pocket the other hand hanging out there was not a dangerous crime that was being committed or had  been committed so there was no known serious threat of danger or at all to the officers of the public and that is in stark contrast to this case where there was an immediate threat stroke in his living room and the court noted in that case that again that there was no threat of harm because he was walking he had although he had not abided by a direction to drop the gun there was there was no threat there was no immediate serious threat to anyone in the vicinity and the court noted that i will notice note that with the two norio case it was it's actually in stark contrast to the two thousand eight hundred dollars salah case by the us supreme court the per curiam decision the court address the situation very similar situation where an individual was wielding a knife and did not pose any threat to the officers that were surrounding him was in the yard  and the officer who shot that individual through a fence was found to be protected by qualified immunity because the officer perceived a threat to another individual nearby even though that individual had testified that that she felt no threat whatsoever from the individual building and the supreme court said it that doesn't matter what matters is the perception of the officer him or herself in that situation and the officer in that so in that situation perceived a serious threat of harm to another individual and was justified in shooting and then finally in the th circuit case the weinmann case that was with the gentleman in the garage holding the shotgun and it was laying across his lap it wasn't being pointed at anyone in the court and he was allegedly suicidal and the court said and that case that there was no threat to the officer there was no threat to anyone in that scenario perhaps with the exception of the gentleman holding the gun but it was laying in his lap and wasn't being used for any purpose and then again these three cases including this one i just discussed are in stark contrast to the case where we have here we have a reasonable belief by a deputy richard and that the officers at least he and  do have clearly established this imprint going to said that when you have a clearly established law you don't need a direct hit from point but what you do need is some kind of case law typically from the same circuit or the u s supreme court at the time of the conduct that gives the officer an idea of adequate notice that what they're doing is in violation of the law so in this case when the question is the exercise allegedly excessive force would deputy richardson have known at the time he pulled the trigger that it was illegal or against the law for him to shoot l t as he was being assaulted and in the dark like that's the case i have all right if we could i have just one strictly construing the expressed terms of the statute that we know that if a litigant chooses to file both a notice and a claim that they have to do so according to very express strict terms in the statute now we agree  what's at issue before us is whether or not b allegations made in the pleadings were sufficient to put the parties on notice of what the claim would be and because they have substantially required complied with the notice those notice requirements of what the statute says you need to plead in a claim we're going to allow it to proceed brown versus dowdy doesn't say anything about substantial compliance with timelines or duty and i hope point is that it's it's impossible to substantially comply with a deadline you either do comply with it or you don't comply with it and then this case it's undisputed that the plaintiffs never filed their complaint with the gov they served it upon your tourney general but they never filed their complaint with the governor ever not even within two years but it is the section of the statute that states what must be filed so it says listen you can file just a claim and if you do so you have to file it within the ninety days and you have to do it the certain way right or it says you can file a notice of intent to file a claim and a which was a case that looked at the the notice as sufficient to be a claim because it had the same information but in pickering the issue had wasn't with deadlines and with considering this part of the statute again there's a difference between talking about the the sufficiency of what's being clad versus when versus when it's played and upon who it served in accordance with the statute so strictly constru ing as opposed to looking for it so you can just sort of this way strictly considering the statute means looking at it in context and this court has said before that you can construe the word or in the instead of the destructive if the context of the statute requires it the only reasonable reading of thirty four million ninety three thousand four hundred and ten together requires reading the or and that and that clause your honor at in the conjunctive and the reason is because if you were to read it in the disjunctive it would affect if we read three thousand four hundred and nine dollars out of the statute because if you only have to serve one of the two upon the governor and the attorney general what's the point in filing the arguing differently here that we didn't get but already well your honor we're certainly really arguing that substantial compliance is the wrong standard by which to construe the virgin islands tar claims  act and because this statute implicates subject matter jurisdiction there's nothing legally precluding us from raising the issue at a separate stage of the proceedings so that's what we've done and there's certainly nothing precluding this court from reconsidering its decision in light of the fact that we're add a separate stage of the proceedings and in light of the fact that our claim is that the legal standard of substantial compliance is is erroneous what is the significance you pointed us to new york law  and the new york statute in which the virgin island statutes were modeled as and what you term controlling but the new york statute provides explicitly that there should be service  upon the attorney general within the time provided tyrian for filing with the clerk of court and the virgin islands opted not to include that separate service requirement in its statute well isn't that what leaves e of the new york case law that we've cited is as you noted the virgin islands tort claims act was adopted lifted essentially from new york and the supreme court in gun has said that when a statute is b the addition of language with regard to when something needs to be filed and served upon the attorney general doesn't change the language of the virgin islands court act claims act where it  specifically says that you have two years to file the complaint or the claim and in three thousand four hundred and ten dollars filing it means filing it with the governor and then serving it upon the attorney general so  the statute on the face of the statute is not affected at all by what new york did with their statue if you look at the face of the virgin island statute the language itself requires that service upon that filing the document itself with the governor must the court will allow i will address the sovereign immunity issue st only because it is our position that there are new arguments that are being raised here and while their position is that this is  subject matter jurisdiction that they should be able to raise that any time there should be a new argument there should be something outside of what was argued before when this court decided this issue a the admittedly there are no new arguments they just feel that they should be able to subject matter jurisdiction if they're not satisfied with the ruling of the court just because  an issue that's never waived and we submit to the court not in this particular case there are no new arguments the court has fully addressed this issue counsel have the opportunity to argue this issue intention is in fact a sworn notice of intention sensually soundest find the verification requirement and even to the extent that the court says well there needs to be some separate perfect cation that being made by the plaintiff in this case and so we believe that we have met the requirements for nine when we sent the governor as well as the attorney general perhaps with garner and and graham as the court has indicated where it's an obvious case that the right against excessive use of excessive force can be defined at that level of generality but is it really fair to call this an obvious case when the officer has information that the suspect might be armed where the suspect is heard to be rummaging around presumably looking for something and where the officer is then pushed over as the suspect is making a sudden exit is that really an obvious case where there is no serious threat of the media term to the officer fact that they were advised that he's a loner not that he that he's violent not that they need to be careful because the absolute weapon but that he's a runner he's going to try to escape we broken window that in fact q marshals appeared on the premises earlier that would be martial powers and martial practice and by the time richardson had appeared they had already been in there for seven to ten out of a window not with a weapon and he was told not to do that he went back and all we heard was there's a victim that has them on it and there's a minor running up and down inside of the house there were no approached the door he heard is inside the person who was running and then all of a sudden there was a burst through that door how can you ignore those facts all which officer richardson had before his gun discharged we're not ignoring the fact the key word is mike not that he had a richardson state of mind was reasonable well the fact the fact that there was no object cooperating information available to richardson that in fact he had a weapon might have a weapon other than a facebook page that occurred weeks before and he was aware of that he was aware of that and he had that discussion with with marshall paris who conveyed that specifically told that this was a posting for weeks earlier it was in or a single posting from weeks earlier i don't believe that there's a specific date men are other than that  you're welcome to to send in a submission identifying that for us if it appears in the record from my review of the record and i not aware of that particular information being healthy trying to leave out of a window but there is no testimony that he had a weapon that would be an obvious and so while there's not a specific statement entire encounter there's also no testimony that he was observed without a weapon right that is correct that is correct and in your brief while we're talking about which in the record you also assert that he was nearly naked at the time he was shot where is that in the record i realize that's in the complaint but where is that in the summary judgment record tells us that that in evaluating the reasonableness of the use of force we look to at least three factors the severity of the crime whether there is a suspect who is immediate threat to the safety of the officers are others and whether the suspect is actively resisting arrest or attempting to evade arrest by flight let's put aside the severity of the crime with this juvenile pick up where but with with the officer him and where that suspect had been attempting to evade arrest and was resisting the instructions to come out why don't we have why isn't enough to have  two of the three gram factor satisfied  i believe that all three requirements past the look that you can't just decide to just focus on one or two although the weight given by the record i have this feuding evidence in the record i ask you exactly what happened that is a clear issue a fact not only a finding by the lower court but in fact the as well as the deposition testimony relates to exactly what happened raises issues of fact the conflicting testimony and so the safety of the officer issue in so far as it relates to richardson being knocked over for example is questionable with regard yet we george did it suddenly open yes richardson was surprised by the opening of the door because he did not take it back l king who he knew was a runner to try to flee he didn't expect that to happen does not warrant the shooting no it doesn't might might have a weapon we look at the case that you have our counsel to focus on and while i'm opposing counsel i counter to distinguish them away it's important to note that  enough either it's not it's not one isolated fact it is all the fact that you have to look and in this case conflicting testimony including the statement that rich door pushed open he pulled back and many intentionally pulled his trigger of course there was a greater distance so that the officer had an opportunity to give warnings and the suspect continued charge but here simply because of the misfortune of in that position if they were being tarred and corps well coming into play to say that that is not excessive force what what's interesting and hard bill and i think  into consideration in terms of head liability because they could hear that l t was moving about inside of the house and it wasn't rea to it it's instructive in terms of the didn't notice that law enforcement should have given and failed to give in this case was there any is there any dispute here that  thompson was notified that there were officers outside and that they were they had previously requested that he come out and surrender and he refused to do that that instead he was the consistent testimony i believe his that he was heard rummaging around running and running around the house the testimony supports that in fact there were two marshals that were staged station to the side in the back of the house no one ever indicated that were about to try to enter the house and why is that separate notice required i would law enforcement is about to enter the premises knowing that a person is there that should announce themselves and indicate that we're counselor it almost sounds like you're making an argument that he had a right under the circumstances to run through the front door  we recognized in the supreme court has recognized for example in going or in graham come to countervailing interests of officers in being able to execute search warrants and and i to take step in case the suspect coming out the door is armed and is intending to use those arms to have a gun that is  with the safety off and ready to defend himself if necessary enforcement and in executing their duties why why is it reasonable for the officer to be unlocking the door and and also having been told that the person they're there to pick up right you're identifying is violated that is a right to be told that officers are entering the house you need to persuade us that that right was clearly established what cases are you relying on to say be on point but nonetheless instructive if we look at this from the perspective of a reasonable police officer is it your position that that being knocked off balance with that suspect immediately before them that there's not a reasonable the the belief that that person who is an immediate danger is not a reasonable belie i'm sorry i think i missed because i thought you were you can finish your question and then you if i missed something in in your statement i'm sorry i understand your argument that it's not it may not be reasonable to believe that he was armed the information that the officer had was that he might be armed but the question for us is whether there is an immediate threat to the safety of the officer or others and when in with a combination of a suspect who might be armed and then of the force of being knocked over by a door or anything else and that suspect in media proximity to the officer why isn't the officers believe at that point that the suspect who is is an immediate threat of harm a reasonable belief door just the fact that they heard rummaging in the house which indicates searching for something in the house is is that relevant to the reasonableness of an officer's belief that the suspect back and forth in the house to the rummaging but i don't i don't believe that there's enough facts upon which to come to that conclusion that it was  thank you your honor comes let me let me ask you if i say the officers had been twenty feet from the door as thompson burst through the door and came running is it the government's position that shooting immediately upon the door opening at that point would be  reasonable hard to say in that circumstance i might be inclined to say no it's an entirely different circumstance and we here have right here and your hypothetical your honor there would be no assault by the door he would have a better vantage point to see and perhaps more time to see if the threat of immediate heart of a threat of immediate physical serious harm would pan out in this case what we have is an  immediate threat and an immediate situation with an assault on the officer by the plaintiff himself no time whatsoever other than time to react to what he perceived to be a threat reasonably  guidance in this case that says where the officer has probable cause to believe that the suspect poses a threat of a serious physical harm either to the officer or to others it is not constitutionally unreasonable to prevent escape by using deadly force judge fisher in your hypothetical it's hard to find the threat of serious physical harm especially while the plaintiff is running away and his back is to the ready officer that threat of physical harm is a little more murky and judge across hypothetical but it certainly evident in the situation that the court sees before today where there was no time to evaluate whether there was that serious physical harm we just know there what's based on the information that deputy richardson had at that time and the circumstances surrounding the situation assumed there was the opportunity to observe thompson was not armed would you agree under those circumstances that that shooting him would be an excessive use of force i can't agree or honor because i think that the others the other facts in this case it's such a factual actually specifics evaluation that i can't agree that that would be sufficient to make it unreasonable  and the reason i say that your honor is because i think it's important in this time that he there was a reasonable belief that he might be armed with the fact that we knew he was going to escape we knew that he was of aiding arrest for a long period of time so in your hypothetical my my follow up would be are the other factors all consistent with what we know prophetical is there sufficient distance to observe that he's not armed is is it really the government's position that a fifteen year old running out of the house observed to be honor having understood the hypothetical is that i think if there is knowledge that the suspect is on arms that that changes everything and it's not the government's position that that it might still that it would definitely still be reasonable to the government's position is the serious threat  n your is the combination of the might be armed and the the unfortunate placement and timing of the didn't believe the officer of the opportunity to make an observation one way or the other with with with thompson immediately before him correct your honor and perhaps it's because of how actually specific we have to get in this consider in this evaluation that courts of counsel time and again that this can't be a consideration made with the benefit of two thousand and twenty hindsight you have to look at what happened at the time under those particular circumstances was it reasonable in the moment that the gun was discharged you know i want to circle back to how we began our discussion today i made a promise to you i'd like to keep  with regard to your question as to the richardson's motion for summary judgment and i have reviewed the richardsons motion and his accompanying memo it appears to be a little bit confusing and he does ask for qualified immunity and specifically says on qualified immunity he's asking for quote dismissal of this action however at the conclusion of his memo on that section he does identify only count one so it's unclear whether he's trying to apply a qualified immunity to just count one actually entire action itself all the counts however we do know that the district court and our theory has been all along that it applies to all that's how we've proceeded at trial or it before the district court the district court it appears did treat his claim of qualified immunity as to all counts on page twenty three of the district court's memorandum of decision and identifies the qualified immunity count as providing relief for deputy richardson potentially on various counts so it appears that that it was understood by the different district court to be applying to to all the counts for civil damages pending against deputy richardson with regard to the nd part of the question you asked we are and i believe your honor please correct me if i'm wrong as i recall it was whether we're relying on nebs verses roberts for that proposition yes that's one of the cases that we would rely on the cour the common law immunity as to discretionary duties of an officer or is that truly a qualified immunity defense analogous to federal qualified immunity as as applied immunity defense that federal law has recognized that it can be used against regular common law claims and we know from meds that the virgin islands has sort of adopted that like i said confusing because local common law has three maps has sort of adopted that it i'm not sure that's helpful at all it but it seems to be both and in either case it would be our position that it does it would protect  you have appealed to this court any determination by the district court on the negligence claim said hugh well your honor we appealed to the judgment of the district court and i understanding of identify along the lines of stitch fisher's question identified for us in your dream where you raise qualified immunity as to the common you have appealed and for the most part what we've been talking about are claims against richardson in his official capacity but there are so individual claims that i personal claims that go to their state law claims court pushed for virgin islands towards where do you appeal that a denial so we don't clarify the distinction i