and the reasons why those cases do not clearly prescribe the officer's actions in this case there's an additional issue of course pertaining to whether the so called surrendering scenario required denial of qualified immunity on excessive force time before i do that there's two aspects of the immunity that qualified immunity which we believe were never addressed by the plaintiffs in this case and if observed by the district court would have mandated a different result on excessive force coming the first is the supreme court's repeated that's the language of the supreme court you know honor and of course we do apply objective standard to that in other words we hypothesized a reasonable officer facing the same situation confronted by the defendant officers but my point being that again what we're looking for when we look at the record of the officers conduct is whether they acted with plain incompetence i don't think we have anything approaching i think that assumes that they had they set out to kill him which they did not we think that one of the you know you don't you think they said they set out to take him to the hospital and then to pillory them people in there didn't seem like a very competent result well of course that a lot of that depends on the actions of the person they're trying to take into custody obviously and i will address that there's a plan that's not with the fourth a routine felony arrest without a warrant part of our point here is that's not the situation we have court we fall with in march because there was no felony so there's no probable cause well there's really not that a felony had been committed so there's no no that doesn't help at all we believe the facts of this case fall within the situation which the supreme court declined to address in peyton nature of the fifty one fifty detention which is the detention of a person who due to their mental illness poses a danger to themselves or others that probable cause in this case by the way is not in dispute therefore we these are service had a reasonable belief that they had a dangerous dangerous situation which  excuse the warrant requirement there was no time because everything else happened almost simultaneously or immediately after that the entry to the house or it was almost right after the show up there almost at the same time as the sho entry in the initial entry fetterman fired at officers twice they withdrew outside the house tried it they spent ten or fifteen minutes trying to talk him out of the bedroom  they instructed him to come out of the bedroom and lay on the floor to come out an arm he came out with the guns in his hand and within two or three second time period drop the guns and surrender of all time but nevertheless your honor the inquirer we have an excessive force claim is whether any reasonable officer could believe that fetterman posed a threat of serious injury or death at the moment of shooting and even if the officers were within this were mistaken with respect to the you know the facts that go to that determination they're entitled to and for the plaintiffs in the trial court i'd like to mention a few issues on our appeals but before i do that if i could first address some of the questions that came up during the argument i just heard the first is of course justice if we're going to write it's a completely objective standard there's no requirement that the officers actually know that what they're doing is in violation of the stablish law second there was no exigency here to excuse the warrant requirement that's what the trial court found that has never been challenged is not challenged on this appeal the reason that there's no  both sides cited in their briefs provide some sort of exception to the warrant requirement for the sort of civil commitment seizures that is incorrect in matic the person who was seized i believe was a farmer living with a family and the family invited the police on to the property where they took him into custody and then he filed the one thousand nine hundred three case so the entry itself was authorized by consent which would obviously excessively for a warrant the defendants say that they could not have gotten a warrant to go into a home to do a fifty one fifty seizure frankly their argument is somewhat ability well we have two issues on appeal one is the dismissal of the mon el claims which has not been addressed at all to take a few minutes to address that but the second is the appeal of the granting of qualified that's probably because most of the time those kind of rulings terminate the case result in final judgments however i don't think that this panel needs to decide that issue in this case construction of the case one of the cases which seems to be most on all fours with this one it's alexander versus city and county of san francisco in that case a very similar fact a crazy guy in a house that regardless of whether at the moment the officer shot this man way who actually had a firearm regardless of whether the shooting was justified event time they could be held liable for excessive force or use of excessive force for creating the situation where the lethal force became necessary there have been at least two cases now the nice circuit there have addressed alexander in different situations one is the duran versus city of maywood case sets up the situation for the use of lethal force should the self be a fourth amendment violation now we on the playing of side in this case say that just the use of the swat team to take a person who has to reach the issue of whether or not the entrance itself was unconstitutional because of the lack of the warrant i think established that would bring this case clearly use lethal force at the moment of the shooting was present we set that question aside let's just assume that mr feldman like mr quaid was pointing a gun when he was shot i think we still have a valid fourth amendment claim under in hard to check abuses by the legislative and executive branches and that's where the warrant power comes from it's an inherent power of the judiciary it just so happens there's no case one way or another on whether an officer can go to a magistrate magistrate judge and say here's my problem cock i want to go in the house and see someone but it's our position to follow up on that point that regardless if there's no power for the officer to get a warrant and the fourth amendment requires a warrant then he can't go with not that he can go in without a warrant the words we think that the fourth amendment here is controlling not the statutes of the state of california even if they aren't the defendant interprets them and we find that to be a very strained convoluted interpretation and one without any presidential support if i could turn dismissal of the county on the grounds that they were state actors to be an appealable collateral order to apply equally to a grant it's not the same as because there there was a more narrow issue when twine with a qualified immunity issue were both turned on whether or not there was a fourth amendment violation in other words this one wasn't coming on that just turns on whether or not  county there's no fourth amendment violation but he would know potential liability court would reconsider its ruling dismissing the mono claims because there was a rather dramatic intervening change in the law after the appeal was filed the decision of the put on th built case right of the late mr hawkins and in that case the sheriff is actually providing staff and security for the state superior court the unity isn't doesn't fall within the pending jurisdiction of the court secondly what i'd like to leave the court with on the fifty one fifty issue is we have a situation where the officers reasonably believe they can get a warrant they have probable cause of a person that a person poses a danger to themselves or others due to mental illness there are the only alternative if they don't enter is to walk away we maintain that these are the jurors in this situation did not act with plain incompetence therefore they should be afforded immunity