error in declining to instruct the jury that evaluating the circumstances of the shooting it could consider whether or not reckless or deliberate conduct on the part of deputy wilson unreasonably created the need to use the deadly force which you apply this presents an issue of whether or not the jury was properly instructed was to the governing wrong there was some dispute in the breeze as to the proper standard of you i would s question presented here is not simply whether the judge should have included the operative language in the instruction it's whether the jury should have been instructed on this legal principle you're right on that point i'm sorry let's assume you're correct on that point it seems to me we'll hear from other side of there's plenty of precedent supporting your position on what about qualified immunity with respect to that you have any cases that would alert cox in this case that his conduct in getting out of the car cetera was reckless conduct would on reasonably create the need for the use of deadly force and and do not need to have some authority some ten circular supreme court authority with similar facts to overcome the qualified immunity defense as i understand the court's question is there are case law in the th circuit or supreme court which would place deputy wilson on notice that his conduct in leaving his patrol vehicle was unconstitutional or was unreasonable force well was fit the standard that you established reckless conduct that and recently created the need for the you know the need for the use of deadly force that this was improper conduct i think that the response to that is that the his conduct in leaving is patrol vehicle in the circumstances did not in and of itself constitute  an reasonable force now the qualified immunity question goes to whether deputy wilson was on notice from he saw that the force that he applied is his shooting at mr cox under these circumstances was constitutionally unreasonable that is a different question now the his stepping out of the vehicle was one factor in determining whether or not o we already have a jury verdict saying that given what he had done because the jury wasn't asked to consider whether his conduct was reckless we have the jury  establishes that he was he did not use unreasonable force in light of the situation presented to him so the only way there's liability is if there was some misconduct that led to the situation where he used force and before we can hold him liable for his conduct as a whole we have to have under qualified and we have to have a case factually and point where that conduct was found to impose liability and i missing something there because i i think that's the standard and i don't see you might have a case against the inclined to agree the district court misunderstood the law regarding whether libel to come could be imposed because of the earlier actions of the officer i'm speaking too much i want to hear from constitutional violation in the use of force side from this possibility that the force resulted from the end ryssdal conduct of the officer to start with you know ok the jury came back did not find constitution then reasonable force question is whether they were given the proper a complete list of factors going to consider and the question again the under the th circuit principle it's not a black and white impose liability in this case given the jury verdict isn't it immunity goes wasn't presented to the jury it was not a question that the jury was asked to answer they were simply ask qualified immunity i'm can i jump in there so your voice dropped a little bit so and i'm just trying to pull out your theory are you saying that qualified immunity is not an issue in this appeal did i hear you say that but our our grounds for appeal simply are that the district court should have instructed that one of the circumstances they can consider in the totality of the circumstances is whether or not reckless conduct on the part of deputy wilson and recently created the need to use force is not a dispositive factor in this case i think it would have been important well let's just i think  i'm not sure i understand the court's question oh well do we get to qualified immunity to score consider qualified immunity even if we find you're correct on the  you the only only relevance to the issues in this appeal is the defense's alternative basis for a firm and in th importantly brings in the issue of the ski enders for ruling on a rule fifty a motion during trial and i have three minutes if i could reserve maybe these court counsel i will i'd like to get to the judge i didn't judge hearts questions with regard qualified immunity like to just talk a little bit about the facts to set that stage so we can talk about that qualified immunity question then i'll plan to go back to the jury instruction issue that i'm not sure was hit much in oral argument by my learned counsel on january st two thousand and fourteen ski traffic was heavy it was a friday going up i seventy four georgetown cody cox who later was found to have a blood alcohol content of point two hundred and eighty was by all accounts driving exceedingly recklessly david taylor who was a volunteer e m t with the fire department for georgetown they have a he's located next to i seventy he listened to the traffic the radio traffic about the driving conduct of cody cox and he also could see could have cox coming up the highway and he took the extraordinary step of self dispatching  office he was the st officer who got behind mr cox he observed mr cox spinning out at one time facing him at one time he tried to get out of his car to be able to get mr cox to stop and he had driven  driven into a snow bank ultimately don wilson deputy wilson my client got into the chase and he took the lead and he also observed the same kind of conduct he tried to get mr cox by announc g on his loudspeaker to stop stop stop and traffic as it was going towards georgetown was getting heavier and heavier and one citizen of racism saw what was going on and stopped her vehicle because she saw th every time she the traffic and go mr cox to try and dart in between vehicles and so she stuck in that gave deputy wilson not to need to pull alongside not knowing how long she would stay stopped because traffic kept going so it was open in front of her and he took this as an opportunity to get out of his vehicle with his gun drawn to confront mr cox to tell him to stop and i should add before that deputy klaus it announced on the radio was that we have to stop this person physically have to stop him he is not going to stop and so that's that deputy wilson got out of the vehicle he went over to the window put his hand to the window and when at which point the stor cox turned his wheel and drove toward deputy wilson now mr deputy wilson is a very big man towards three hundred pounds and if you look at the record you'll see that the in the stage it's very narrow between those two vehicles and there were fact questions about that but the jury decided them in favor of don wilson that it was objective really reasonable that he feared for himself or others and that it was justified in him shooting him what we're left then with is this question about the recklessly causing the need for use of force argument that's been raised by mr cox and that does raise two good questions for the court to consider one is the jury issue which is the  but the nd one is the questions judge hearts you raised netters on qualified immunity and i think judge harks the point i think you were trying to make yes we've already decided the issue of whether or not it was objective reasonable as to whether or not the use of force is appropriate the only thing that could possibly be left is is there a case that would be on point to say that a police officer in this kind of a situation committing a th amendment violation by the decision to get out of the vehicle and there isn't a case that says that it's as if the way the record stands now is it's if we had submitted special jury instructions to the jury and said answer this question would it be a th amendment violation to have gotten out of the vehicle to have made that tactical decision and then we could address that special jury instruction the court could on a qualified immunity basis but that's way as i took your question judge hearts as was the case on that there's no factual dispute but he did make a choice to get out of the vehicle where is the case that says that you are not qualified i'm human for that decision and don wilson's decision to get out of the vehicle and that's is why we raised it as an alternative theory for purposes of affirmative of the jury's verdict in favor of dawn wilson  with out such a case then i think that qualified immunity is a argument that cannot be overcome by mr cox and as an alternative basis it should be the basis for affirm the decision but let me move back to the jury instructions if there's if there's any other questions of qualified immunity happy to address those but with regard to the jury instructions here's what we had we had a court who gave very direct instructions he gave the instructions out of graham they were very very summer with regard to the relief requirements under graham versus conner the instruction came largely from the federal jury instructions from the lethal th and instruction that used there was only minor modifications and the court gave that instruction in addition to that instruction are the record the judge also gave a number of instructions with regard to evidence for example saying you were to consider all of the evidence in the record in the court also gave another instruction that says you may consider the evidence from expert witnesses and mr s was given the opportunity and took advantage of the opportunity to present the evidence that he thought was important with regard to being reckless for don wilson to get out of a vehicle that evidence was not barred i tried to  opportunity to paint that argument in the court directed the jury is this is how you interpret this painting and he did in that in jury instructions or to conceptualize what it is that the jury is supposed to do and in a court was clear that the concept that the jury had to consider was that a set forth by the supreme court in graham versus conner the objective reasonable list inquiry and with regard to that the court specifically said straight out of connor that look t of circumstance and situation you were to judge the totality of circumstances as to whether it was objective lee reasonable for don wilson to have used lethal force against cody cox the jury said yes it was objective lee reasonable court did not give the instruction asked by mr scheer that says you may consider whether it was reckless or for mr cox for mr wilson to of of cause the circumstances in which he ultimately had to use force that is to be considered it's a specific instruction that's to be considered on an abuse of discretion standard of course the court looks to the instructions as a whole to determine whether as a whole they legally are correct that we're only judging it from the exact nd that the trigger is pulled i think that it is important to consider the context realize circumstances of the use of force what i don't think is necessary is that there be a specific instruction that says that no i would frankly take some issue with regard to the reckless endangerment what the state of the law is on reckless endangerment and where and what its context is with the th amendment  to she and case and lighted mendus case but and i argue those in the brief but i don't think we need to go there i think the cases cited well before you get to that question and so my opinion is is yes that's a correct statement of law and in the context of all the instructions that were given the totality of structures graham versus conner instructions that yes that's that's appropriate and sufficient for the jury to have made their objective reason was terminations then answer that question i hope i didn't talk around  to exclude events leading up to the shooting is that not correct i don't think that's correct any and tell me why well i think that the instruction as a whole doesn't limit it to that an not you know what what they were the not there was a danger to the officer or others i think the context the instruction of them is broader than just saying at the moment that he pulls the trigger if if the court reads it that way then then  the defendant was in danger at the precise moment that he used force so that again is focusing on at the precise moment when you can react to that as well i think that i think that's consistent with the law that it is to be focused at the time i mean if if he doesn't if the officer doesn't feel like he's in danger at the time he pulls the trigger maybe felt like he was in danger ten seconds before then the rubric under graham versus conner is going to be different i think that's what the instruction is trying to impart as opposed to to telling the jury or to completely ignore the can textual circumstances in which led to the need for force such as the danger that was observed to type things to consider and particularly you start looking at the other instructions say you're to consider all the evidence that you heard and that we had eight days of the trial and we had eight days worth of watts of testimony with experts on both sides on both the liability in the damages dearie so i understand the court's concern on that and if it was strictly the time in a noose around just a few seconds of time i would have an issue with such an instruction  probably cause voluntariness of fashion's and if the court's going to say that you absolutely get an instruction that that is your in circumstances  circumstances is an idea in which everything is to be considered as opposed to naming all the possible circumstances if you do that you're inviting appeals because there's no way that you're going to be able to list all the kinds of circumstances that might be included i asked for example for an instruction that said that he knew she would not consider the question as a circumstance whether there was alternative uses of force available and the court verdict in the court because you it is the totality of the circumstances and that you're to consider all evidence and it heard that evidence and then if the judge picks one specific circumstance doesn't it reduce the chance that the court is emphasizing one circumstance over another as opposed to giving a jury which that's what we do with juries as we charge them with being able to sort out these days of evidence to decide what are the things that are important in the context of the evidence the court permitted type is that it is i'd as i just one more question so what is your position that we need not decide instruction issue immunity i think that the court can choose which order it wants to consider those issues i brought it up as an alternative theory perfectly fine if the court chooses to address that st much like the court does in a qualified and you munity analysis on the two to your approach whether it's constitutional and whether it's clearly established so i think that it's perfectly within the court's discretion to choose which of those alternative theories that it wishes to address and i rely on the briefs on the cross appeal issues thank you so much  counsel just made the statement the beginning of his argument that it was not a th amendment violation for deputy wilson to exit his patrol vehicle under the circumstances i think that's absolutely correct and circumstance part of the circumstances connected to the shooting let's back up a little bit and think of the purpose of qualified immunity it's to protect officers who have no reason to think that what they're doing is wrong essentially it's got to be there's got to be a clear direction to them that this is wrong before we can hold them liable under the th amendment claim but here the only source of life billeted the only thing that the officer did wrong allegedly that could lead to liability i'm saying this in the context of the verdict would be that he created the dangerous situation that led to a according to the jury reasonable use of force so what told the officer i've got to be more careful about getting out of the clue how i get out of the car because if things go bad then i'm going to be liable if i have to shoot the person and isn't that really what qualified immunity is all about i would disagree that surprise reason i guess it would be important the reason i would disagree is the verdict was not based on qualified immunity the verdict was based on a finding however they got there that the use of force was reasonable in this case under that to tell it in the circumstances it is they were instructed in that use of force is focused on the act of him shooting mr cox given the circumstances the totality of the circumstances and for whatever reason however they got through that is what the jury determined the question on appeal is whether or not they were given all the circumstances which would let them make a legally proper determination of that is shoot i have fifteen seconds left the question the sensually in this case is whether the jury could he have understood reasonably from the instruction it was given that the that they could consider any reckless conduct by deputy wilson in determining to tell you the circumstances in i submit that given the language of the instructions they were given they could not