immunity to that issue did the defendants have fair notice that their conduct was not constitutional now what must be established is that the conduct the use of force was unlawful not that the facts were clearly established general statements of law are not inherently incapable of giving fair notice and in clear warning to the officers so when they started to shoot beanbags to the op sers war that's only one of the factors under gland to be considered or door the other factors would be whether he was an immediate threat to the officers and he was not an immediate threat that's the most important important factor in using the beanbags there has to be in a serious governmental interest the governmental interest must be strong there's there's no published cases that say that using a significant amount of force to stop someone from attempting suicide is reasonable or lawful whether any cases that have this queerest question about immediacy is this was in a large public area with people still around and something had to be done at some point that is in your view the alternative would just be to wait till nightfall and that would be one of the alternatives judge boggs the other alternative would have been another use of force in the continuum between doing nothing and in effect using deadly force but st of course the force they use wasn't meant to be deadly and it wasn't in fact adly and the alternatives i noticed one of the experts is canines i was on a case where they sent in a dog and the dog killed the man and of course he then sued because you use deadly force as between beanbags dogs you know they're not attempting to kill him is there anything that's clearly established as to once you can use some kind of force that that helps us that all or helps them in knowing how to draw a line no beanbags specifically in a lethal manner which if not established in the pleadings and testimony is a disputed fact they use lethal force initially a th amendment violation before the shooting even though they were not only not lethal they weren't even very effective no they weren't but they they aimed at an area that they're specifically trained not to and the precedents the cases state a beanbags are lethal force are expert testified i believe it was on the way then they had a bunch of policeman who were what was one perhaps shields just perhaps something else and i know it appears that we're speculating though but there were other options there's a continuum of time was on the side of the officers that were there often these these standoffs if you will last two and three hours four hours till nightfall he was getting tired he was sitting down standing up this area are expert also testified to the extent that what they did was wrong bringing up things such as it's a sin to shoot yourself you're trained as an f negotiator not to bring up any type of religious issues unless it's brought up by the suspect they had time on their side there was no reason to rush this and there is a specific law on that under dorling the desire to resolve quickly a potentially dangerous situation is not the type of government interest that standing alone justifies the use of force that may cause serious injury and orly was a bean so there were there were other people in the vicinity right which is that the case and or they were but they weren't in danger nobody was in immediate danger they had him contained that sort of gets to this question of media see in the sense that in fact at any time he could have come at the officers as he ultimately did he could have come at and out into society in which case shooting at him would have endangered others i mean that my  real problem with this is clearly things went bad compared to almost all the other cases they weren't acting hastily they had options and many of those options you might well have been here when they use them and something went bad the dogs the tasers i've been on many taser cases you know where something goes bad when you use tasers that's my problem as is is how do you when there are many alternatives you say that you should simply should you used a different one or do you say they had a range of options and they picked one and it turned out badly i think that's part of the analysis under glam that's one of the things that you look at most importantly doesn't and you look at those factors factors in even to decide was this reason that right yes ok that's fair deadly force was unreasonable in a chokehold after the incident had concluded if you will the suspect was fleeing and in keene  officer the detective used a choke hold the case you used to justify it was a gun case and i thought that was interesting in the apply camilla tea to the nd prong here because i'm not sure that k i n g king  your honor but i cut both of them wrong judge based last week or the week before you joined the dissent in slater which was i think contrary to the king case in where you held that the th circuit was still going in the wrong direction on qualified immunity and using two general facts negotiators tried for some time to talk him down into your lee they told him to put down his crossbow he did put down his crossbow they told us the guy wanted to put down his knife he just wouldn't do that in the in your lee he was on his private property with nobody from the public endangered by his actions here he was in a public place those are the differences which at a level of generality forewarning purposes to police officers make a difference i don't think warning is the issue and also in the orleans threaten the officers he told them he was going to hurt him and he was approaching the officers that that's odd i'll give you no no no you know the warning to the police officers that their actions are pilotage of clearly established constitutional norms that's what that the whole purpose of qualified immunity is talk about the governmental interest in using the force whether there was an immediate threat to officers or others that's the most important there was no immediate threat here when they used to be in bangs the severity of the crime it issue hero and i had not committed any crimes he had gone to the bank door and shaken them while they were about to open and then he left and right went walk down the road later he did show a knife but when he was up against the wall he wasn't a threat to anybody and he had committed no bribes didn't he quote show the knife or advance on the officer at the bank now you're talking about that the only allegation of any showing the knife or advancing would have been when the officers arrived and he's trying to make his way over to have protection or something at his back but no the officer actually didn't arrive at the bank the officers got became aware at the bank by telephone correct correct they didn't see him at the bank correct there was a call from the bank that somebody in a dark hoodie carrying a bag had tried to open the doors and they felt uncomfortable they didn't feel threatened they didn't feel you know it wasn't a serious situation another citizen called in and said that mr gaon was carrying a knife are you limiting your claim to the beanbag damages or also to the death well if mendez wasn't decided until two thousand and seventeen mendez overrule billington when the supreme court said that the provocation rule of the th circuit was bad ok in this case we're alleging there was a th amendment violation by the use of the being bags it was a continuing incident that th amendment amendment violation automatically made the lethal shooting unreasonable and unlawful even if it was a good shooting the nd because if it's the totality of the circumstances under ground and even if it wasn't a th amendment violation you still have to consider that they caused this shooting by by expediting and not waiting and shooting him with the beanbags when he did not pose an immediate threat and under president it was unlawful the court at st prayed on behalf of the pallies and defendants in this matter just to address mr smith's points taking the last point st perhaps that if i understand his argument because billington was  law on the th circuit at the time the provocation rule that somehow these officers were on notice that they would be violating what the supreme court later decided was unconstitutional law quite frankly that this makes no sense that you would hold an officer responsible for violating what was later determined to be unconstitutional the propagation rule does not apply with respect to some of the questions raised by the court in terms of l i'm not sure how you pronounce that case it's obviously been rejected normally during the thank you by the supreme court and she hadn't and the courts have been instructed not to read that case too narrowly and as the court has already pointed out th mean just going to the being bag situation the public was cordoned off and at the time of the beanbags he was not moving away from the sign he was shifting and obviously watch the video was shifting back and forth but he wasn't coming out toward the public or even toward the police so i have a problem with the issue of the immediacy of the danger because if said at that point was and if you notice in the video he is at that point very clearly changed his his posture looking to his left looking to his right so that the sergeant said we can't let him get away from this backdrop if we allow him to get away from this martini we're going to be shooting into being bags or whatever into the crowd so as he started making those furtive gestures that's when they decided we've got to try to stop him from getting to that crowd i don't think there's any requirement that they wait until he runs five feet to the outer perimeter of of the marquis they didn't shoot him then they shot him with the bean bags were you do you contend it was under arrest at the time the officer shot  the bags he was certainly detained there was probable cause to detain him what was the probable cause as their expert pointed out there was certainly good cause to believe he was casing the credit union for a possible rober and that's the misnomer this whole thing is that he was somehow suicidal unlike the early or glen there was no evidence or no report that he was suicidal and in fact the officers that was the jumps up and after he was shot with their with the bean bags after that was afterwards right after he shot the bean bags or do that the whole time he had a knife to his throat but what the officers clearly observed which was important to them is at no time did he slice was i mean it looked like he was threatening to to knife himself not that cops well but the interesting is at no time even though he's gesturing like this did he cut himself right did you say yes to commit suicide before the cops can give us side oh no but unlike your early or glenn there was no report the only report was he was casing a credit union right before opening and cancer judged by its question he did pull the knife on the st officer who confronted him and then he moved after he left the credit union when the st officer contact in the street he pulled a knife and that officer did not shoot because there was a work crew behind him in the street you sa would mean these officers would have had to advance on him hoping that the taser which is often ineffective might have worked and then he placed himself in a position of potentially being stabbed by the knife and and at the end certainly the circuit in scott versus henderson said you don't have to keep choose the least intrusive only that your choice of force be objectively reasonable and the u s supreme court in scott versus harris said the same thing they have cited any clearly established law on the issue which is really before the court and that is clearly established prong of qualified immunity because these facts are so distinguishable he was out in public there was a crowd of over one hundred people nearby is an immediate threat to them if he gets beyond that marquis they tried desperately to stop him with anything but lethal and unlike the case in glen where they shot him with lethal force when he turned away from officers mr gay oana actually got up from the less than lethal and charged at the officers with a knife i know say that the that he charged with that the knife and also look like from the video he was stumbling and went in front car not at the office hours well there's officers everywhere and there's no question it absolutely undisputable that he ran in the direction of the officers he did not run away back towards the marquis he didn't stay on the ground where he had been knocked down he got out lunged at the officers he's in a and leaning forward that's true but he is running it's totally undisputable that he's running at the officers with a knife thrust forward when they finally had to resort to deadly force when he's within less than twenty feet i don't want to see another suicide by cop turned into a homicide by self defense this happens too often i have other cases like this in my in my office i just heard a lot about well if he would have run we couldn't do that you know and if we would have used a taser it might not have worked well that kind of argument works both ways as does the argument about clearly establishing what what the officers were aware of and what the law was at the time of the shooting and billington was the law at the time of the shooting billington was not overruled by mendez until two thousand and seventeen if there was a a th amendment violation that led to the shooting to the to the death to the use of lethal force it can be found unreasonable even if it was by itself  constitution says it applies backwards as well as well as forwards and never heard that argument made that you acted unconstitutionally because you acted before the supreme court said you were acting constitutionally do you have any reference that goes into that conundrum i looked and i will answer you by saying this judge box that absent that argument the other yet what they said was just the th amendment part of it so my argument that focuses on the th amendment we can take that out based on your question think the issue about him pulling a knife on the officer i'm sure the court will read the facts carefully there was another citizen that called in about the he had a knife before the officer arrived so he didn't pull the knife out and go after the cop and you can watch that entire forty minute video and see that as well she hand was  dangerous uncooperative breaking the law at the time and hidden in a room so that was the facts are different but this focus on the facts that's the problem with these these qualified immunity the nd prong cases that you can always find facts that that are different it's just that way but it's the principle that that has to be established not the facts the facts have to fit but it's the principle that you should not or it's unlawful to shoot somebody that's not an immediate threat that suicidal with a beanbag gun that's what glenn and