confrontation and specifically the primary purpose test and the literal right to confrontation mr estes asserts that the district court misapplied the objective part of the analysis from ryan in particular the focus should have been not just on the emergency but also on the investigation that was done by the caller and i lost everybody and i'm frozen on the caller is an object of circumstance a fact that was proven and evidence was submitted with respect to the investigation that was done by the caller to the nine  emergency on that investigation involved contacting not one but two other people and inquiring about various circumstances that may have meant mr estes conduct more or less illegal because the district court judge did not address this fish and me and focused more on the subjective motivations of the police and the objective or the subjective e information about the investigation was redact did ok so given that background is your argument that wasn't really an emergency because before she got on the nine hundred and eleven call she contacted friends and in the course of contacting those friends she urged both of them to notify the police of the situation she was in it is a part of my argument that there was not a true emergency here because of those contacts she didn't call the police i need help there's a man that i'm with who has a gun and he's using that gun recklessly in a way that puts me in fear ok but the government argues she was not free to make a voice nine hundred and eleven call until they came upon a road emergency road block or something and he got out of the car and as soon as he got out at the car she then place the nine  i understand that they that the the circumstances are such that it would be reasonable right as an explanation that mr estes got out of the car and she was finally free to make the call she was texting and driving there it wasn't like there was a bet it was her actions were under no dissed by mr estes and you can help because of this problem that's not what she did which she did was say to her employer do you have a go and are you missing a gun and does it look like this and when the answer was in the affirmative that's when she said oh i'm in trouble and i would like you to call the police and of course that person did call the police and then ten minutes later there was another call from the the  woman who was in the car with mr estes but i never enters the questions that you just said that she asked her questions that are designed to figure out her degree of danger so how does that help you well i don't think that those are questions to figure out her degree of danger i mean there's a cut and you're ending it by saying after she asked then she realizes now i'm in trouble well no adults that's a little that's how you put it which i think would be a fair construction of it and that's a little different than an investigation that would seem to be sussing out one circumstance of a threat and while that is a no other objective criteria with respect to whether there's an emergency or not i guess my point is judge karen is that the interpretation of the emergency is just a single factor with respect with respect to whether or not these statements are testimonial right i think that there's a more significant factor involved here and i want to move on to the idea that this is the literal right to confrontation that is involved here it is both the investigation and the lack of emergency and the fact that that somehow because if we look at ohio versus clarke which an inside of my in my brief but if i were to look at it we would see that one of the major concerns in whether or not the primary purpose test is made is whether or not the person is capable of fabricating the emergency you know and that is what we argued was that this was a fabrication of an emergency but in in more than that the government sought to admit this testimony even though the cleric was available and we think that that is a violation of the literal right that is what justice thomas talks about raef st said there was a violation of the th amendment right and then you make an argument that independent the th amendment there is a right  right quite clearly and he has i want to say concurrence with davis he characterizes that there is in fact a literal right to confrontation and that the informal nature of the nine  call can assume the basis of formality based on the idea that if you if someone is trying to you they need right the formality of the process but that itself is a  consideration in whether or not the statement should be admitted as testimonial or non testimonial and that to me is the crux of the literal right to confrontation i think that's how justice thomas characterizes that i think that's how justice clarke the other the other point that i would like to make your honor is that i think that an apologize if i mispronounced this i think it's key to the case that we all say about the st circuits decision about what factors should be used in determining whether this is go ahead finish the sentence sure i think that those factors are unnecessarily restrictive and that factors are actually more inclusive than are identified again thank you thank you assistance for an ongoing emergency and i'd like to pick up on my colleague's argument that this wasn't really an emergency because the caller had done some what he calls investigation before she called nine hundred and eleven we've made two primary points in our brief as to why that doesn't change the fact that this was an emergency the st being that the record shows that she was unable to make a voice call to nine  when this interaction with the defendant and the gun began she was right next to him and be a call he was brandishing a loaded weapon at her and so she reasonably made the decision i would argue that it wasn't safe to call messages i would argue did two things she did ask both people she texted to contact the police she told one of them you know i'm scared i'm going to be hurt please contact the police so they certainly don't suggest there was emergency but rather the opposite that she's already quite fearful and reasonably so but also she's trying to assess just how much danger she's and as we argued in our brief there is i think a difference between  someone who's possessing a gun that they were given permission by you know a friend or something like that which is what the defendant told his girlfriend and someone who's actually taking the step of stealing a firearm that very morning already we can tell from the record that he's acting erratic and so i would suggest that she's just trying to figure out exactly how much danger am i am and through these text messages and so it's our view that the district court was absolutely correct that there's nothing about this proximately twenty minute period before she called nine hundred and eleven that diminishes the urgent and emergent nature of this call and then my  e has just suggested that the kudzu factors are too restrictive those factors are drawn directly from the supreme court's decision and davis they've been the long the circuit for a long time and as we've argued in our brief this nine  each of those four factors namely that the declarant was speaking about events in real time as they're actually happening she's describing to the police exactly what's happening and the risk that that she's then a reasonable listener would conclude that this was an emergency you have a felon with a loaded weapon who's brandished at his girlfriend and who was stolen at that very morning the rd that the dispatcher it's questions were tailored to resolve that emergency the dispatcher is focused on who are with where are you there's a lot of discussion about the location and how can the police find this woman as quickly as possible and most of that a clearance answers were geared towards helping to assist in the emergency  pointed out to the extent any additional information was volunteered that was ordered redacted from the phone call and so anything that arguably testimonial was removed from the from the audio in the transcript and finally this was far from a formal police interview this is a woman who is in an informal environment in a car with someone who's again brandishing a loaded weapon at her and is clearly not safe so we would argue that each of the kudzu factors is met that the district court properly determined that this was not on testimonial and in that case the law is also quite clear that the confrontation clause simply to not apply my colleague has suggested that there's some additional confrontation right beyond the th amendment but that's just not what the supreme court or this court's law shows i think there is you know been a bit of a progression from crawford is and how did the reduction part come about because the argument you're making about the emergency nature of it i'm just a little puzzled what parts of the call them would be rejected i know your honor that judge hornby i believe at pre hearing conference had raised concerns about some aspects of the call that he said were hearsay within hearsay when the declarant was reporting what she had learned about the gun being stolen so i don't even know that it necessarily was a concern that that was testimonial but there were separate evidentiary concerns and so what the government did prior to the hearing is provided a redacted version to the court and said we will agree to remove anything that's hearsay within concern that she volunteered more than was necessary to resolve the emergency that's been eliminated because anything about the theft of the gun was redacted from the call and then again just to return briefly to this idea that even though it's not a testimonial the government still has to produce her as a witness i think it was you know after crawford the supreme court sort of further defined the confrontation right in davis and then bryant and made very clear that when you're evaluating a claim like this the confrontation right only applies if the statement is testimonial once it's not on testimonial the question at that point is only whether there's a rule of evidence that would allow the admission of the statement so we would argue that that is the position that we are in here that this was a non testimonial statement and then then the district court set forth several valley bases under the hearsay rule for the mission of this nine hundred and eleven call unless there are additional questions from the court we would address in our brief and the court to affirm thank you thank you emergency when she told when he brandished the weapon she said that she asked him to put it away which he did and if she's assessing his the level of danger that she's in i think that that's a significant factor that he seemed to be paying attention to her and while he showed her the weapon he also particularly that he was a primitive person and that he had possession those are quintessential a testimonial in nature in fact that's why the government was asserting that he didn't need or they didn't need to put on the collar because the call itself established the evidence that they would have otherwise used to prove mr other testes guilty and that is significant that is significant both under clarke and if we look at  concurrence is in the sense in davis and brian we can see why we can see why because everyone was can everyone the major concern of the six a member right to confrontation is to make sure that we are using statements as a basis for evidence this isn't a situation like davis or bryant let's not forget it bryant the gentleman who was making the statements passed away and davis the problem said i have an emergency and you could say what it was you can describe it like the emergency consists of a man with a gun who's threatening to kill me that would be testimony to undercount well i think it would be testimonial particularly if you were using the declarant to come in and say that right there's a difference between having someone subjects in cross examination and someone who just comes and says these things or is unavailable thank  you for their questions from the panel now thank you that concludes argument in this case attorney andreassen attorney live has you should disconnect from the hearing at this time