it please the court counsel what we have here is a little more monday in the last case we are talking about qualified immunity of a police officer at the pleading level in a nineteen eighty three case as united states supreme court has indicated this is a fact specific inquiry and our position is that to lay out the facts that are not based on speculation on june twenty third two thousand and fifty day and you know and tonio meters was thirty years old lived with his family at two thirty four liberty street in el paso texas day it was five foot four inches tall and weighed only one hundred thirty seven pounds prior to june twenty third two thousand and fifteen daniel routinely exhibited signs of mental health issues his parents had called the police a number of times before june twenty fifteen due to his threats of suicide on june twenty third two thousand and fifteen maria raw meat is called nine one one reporting that her son daniel was threatening to kill himself and needed help maria told nine one one dispatch that daniel was threatening to hang himself but she did not tell dispatch that he had a weapon b se he did not have a weapon the first officer to respond to the call was officer as heather he had limited experience as an officer and no training on how to engage persons suffering from mental the factual allegations in the complaint notes that were say it is that the real allegations in the complaint are based on what but simply says this is guy heather thought what he saw what he felt why he did something that would be so again you're you're you're questioning the credibility of the allegations  complaint regarding what ask ahead or saw or thought yes or we are you know you can't do that on a qualified immunity appeal at this stage but you can do it at tr if you wish to try to bring in witnesses to question what he thought or saw or what a reasonable person would have thought or saw but you can't you can't do that at the at the plating stage that's not what a roy it has to be more the speculation there has to be more that has to be more than speculative that plaintiffs can recover and when the  the complaint is pure speculation then the complaint fails as a matter of law under the ball wobbly and if their the only paragraphs that included in the actual facts are the ones we just spoke about or if you go back to the paragraph eighteen which is sort of a summary of eyewitnesses it could be forensics it could be a lot of things but there's not going to be forensics i thought i mean just even if we could address this issue i thought the issue was the light and the mother the mother and father even if they'd lock themselves locked the boy out they were fearful they locked him out so they couldn't have seen the basketball net they it's perfectly plausible that they would have seen that it was quite light so therefore the presumption is the officer would have seen that he's hanging himself when he taste him and he says no it was very dark and there that's that's the essence of the dispute but that's something that is a different narrative factually it's not you're not arguing the qualified immunity legal standard as to excessive force and no sir we're  court we don't believe that you get to that circumstance but because the facts as plain are shows a did that they cannot form the basis of a proper complain argument qualified immunity and third it's certainly our position although i just heard counsel essentially admit that the facts as true would would not avail them of qualified immunity but we are prepared to argue the qualified immunity if we do believe that taking as true the facts stablish a possible excessive force claim or you do you do you agree that if we find your position correct and dismissed the appeal that  defendant would still be able to raise qualified immunity at some later stage of the proceeding in other words it hasn't been waived yes your honor they would be able to raise the issue at a later point in proceeding in summary judgment with i think that the appellant cite numerous cases in the reply in a string say two of which are from the fifth circuit a number of which are from the first the eleventh all of those cases are posted ball but if you look at each of those cases you will see the court grappled with qualified that resolution of the legal issues was appropriate because they had a qualified immunity analysis in front of them but they distinguished that issue i'm sorry and they also were addressing the sufficiency the pleadings as it related to the qualified immunity but they distinguish that from an earlier  smith versus pernetti in which the circuit said again same thing there was no legal argument regarding qualified immunity and so it was not appropriate to simply address the facts with the alter it's of the case of the qualified immunity of those reasons we do raise hell she because they this i think the phrase is extravagantly fancy for the court actually says if you look at it paul that those they'd still have to accept those facts as true if they're tragically fanciful nonsensical that is still be still have  if they're specific and they're facts conclusory facts the court states they're just they're not facts they're threadbare recitals of the elements and so those are the only facts that we can assess and of course after we assume the veracity of facts we move on to an analysis of qualified immunity o seems undisputed and it's the single cop who write those show so if it were dark and he says show your hands and show the hands then a taser i guess you say the newman case is the best one  pleadings of any commands were provided to them much less whether it would have been reasonable for somebody who was hanging themselves right to respond to that there's no doubt that this situation is difficult i think the other issues by a single officer was in that line of cases what they really look at and especially comparing them with carol versus ellington and samples is the amount of time the officer has before using it or i mean in each of those cases you have somebody who's unarmed not resisting arrest did constitute excessive and reasonable force for those reasons although it sounds again like the appellant is agreeing with us on that so i don't want to waste the court's time by by rehashing that that as alleged we have  on the jurisdiction of a shoe we believe that there clearly is jurisdiction in this court as the united states supreme court pointed out it fall opinion may eighteenth of two thousand and nine the sufficiency of the pleadings is both it extremely intertwined with them directly implicated by a qualified immunity to feel those two go together the case thirteen days before it ball and was effectively overruled by it all so we don't believe that that is good law this is a qualified immunity argument officer normally in the complaint what is alleged is that this happened this happened this happened officer responded this happened just an effect from a third person perspective those could be facts but i think the probably is that there was no one to allege according back to your question about those that have to be a witness i don't believe there has to way be a witness there's more than one way to skin a cat as my mother always told me but there has to be something for the plaintiffs to hang their hat on i'd say this happened and it has to be as the eighth circuit said more than speculation is this is just too early a stage in the proceeding opposing counsel has acknowledged correctly that you don't waive qualified immunity even if you lose this appeal it can be raised on summary judgment after appropriate discovery or even if you don't prevail there it can be raised at trial the problem now is that this can be viewed as simply a question of  raised later and if the facts they are favor your client you'll have every opportunity to present them yes or i understand that i and i agree that we have at least two more b