so let me ask you on the standards that need to be applied here because i'm trying to figure out what standards apply both for board boardman and then also the supervisors applies to director cox and wardens policy in this case which from what i can tell the policy that you are asserting here is implementing birdshot policies in it omitted mention of the nationwide survey that you're aware of that out as a part of those cases and knew about that in that survey which is referenced in the complaint not by name but it references that there had been seventy one instances of that a blank shot was not fired that is that the policy was not here to strictly so could you run through the analysis you've explained that for him you think it would require the higher standard malicious and sadistic is i think i understand what you said earlier is that right indifference standard to for common and so because he did that in the district court didn't apply them malicious and sadistic standard and therefore didn't go or allow you all to argue the five factors  on the on the whether or not the law was clearly established the district court just stopped in this analysis and didn't take all the facts that the plaintiff certain is true and then it wasn't until the not a lot of texture here to figure out what exactly and they said and we said we don't have findings right do you think these allegation that given that the complaint here we would be in a position to say this as a matter of law doesn't rise  and you're out what we can legitimately resolve at the appellate level without having two appeals instead of one before this case ever gets to trial if it goes that far at trial then he is entitled to qualified immunity because as a matter of wad those facts would not amount to alicia's and the employment our attempts to you know achieve judicial efficiency is really the one that judgement is pointing out you know it's a very bare bones complaint it's really tough to do that i mean there are some cases where we can but this one is going to be tough so point it might be there for the skipper so this can you state your parents please it's thank you your honor your honour's good afternoon john burton for the plaintiff in my prearranged remarks i had planned on addressing the potential liability of the supervisors st but given the way the argument just went i will flip that around and address appeal from the denial of qualified immunity to obvious or boardman because we don't know what the facts are and there is no jurisdiction for this court to decide what the facts are there  two starkly different versions of events i think mr burton and i'm sorry to interrupt you but the only issue i see with that is that i think looks like the district court applied the wrong standard to mr board he did a deliberate indifference standard mr boardman and from everything that i can see in our law when it comes to the correctional officers who are actually in course on his alleged excessive force it seems like it should be a boardman the st is an excessive force theory because there is an interpretation of the evidence that he was aiming at the un involved in aids who have to be african american that you know that made a very including directly d c richards with two different last count so the reason we're talking about the complaint is that i know it's not the one misunderstanding in the procedural posture it's that on page appeal and also in the district court as you know the case developed and we got that here is praying six hundred b b pellets in this crowded tear with a bunch of people lying on the floor was deliberately indifferent to this day of those by standards and violated farmer versus brennan we absolutely argued that and we you have those two types of claims against the correct like a quick someone like the correctional officer they collapse into the malicious and sadistic stare from what i'm reading but i want to give you an opportunity to tell me if i wrong but look you know the cases that i looked at and i know that the pi there was a lot of confusion here because i think you do have two different theories i guess against mr boardman as well  i mean especially because he's actually the enforcer or the person who acted with the excessive allegedly excessive force and then you're also saying it was a maybe a want to see what case that is that says we use a deliberate indifference standard and and not the malicious and sadistic standard with which to be your best authority for that well if i could back up i mean we're talking about the th amendment and the th amendment guarantees in a reasonably safe environment and that means freedom from  nton and sadistic infliction of course by correctional officers but it also protects them against other risks and dangers that come with the jail environment now in robbins versus me jim which is really on all fours and i think disposes of this qualified immunity appeal even without resort to the hitching post of his fellows or because it's a case on all fours they use a concept there of transferred intent because the plaintiff in that case was a against the officer no i don't think the robins was used to show that there was i mean robin been used to show that there was clearly established law you know i think as well with the main argument malicious instant sadistic employment of ford so i don't think it supports your argument that there are two different standards that apply to the correctional officer when you are alleging lying on the floor in compliance where he's hit squarely in the face with a shotgun blast adak can be viewed either way as a deliberate indifference to his health and safety or as a area is not relevant what is relevant is that they fired a shotgun blast at an inmate it is this conduct that the th amendment is designed to restrain and then later in the opinion we hold that  is a dispute of fact here in under either version of the facts and under your standard frankly there's there's a disputed fact that precludes  deliberate indifference standard and i do think there are some questions here in that it probably needs to be fleshed out under the malicious and sadistic standard because it looks like you're offering a theory that maybe he  intentionally and that he could because of their race or for other reasons and i think it's appropriate to have that argument presented and have the district court then about the way that because there's five factors under that malicious and sadistic standard that the district court would need to then decide i mean the question is i mean should we be doing that i'm not sure we're in the best position to do that but i  of firms the consequence will be will go back to just record there will be presumably a jury trial all of this can be aired we can have all the evidence a jury can draw the inference is appropriate the court can rule and then have somebody who's not happy with the way it came out we can come up with a complete record in the different standard of ever telling the district court you misapply the legal standard here's the legal standard you must attach and you must so instruct the jury that the only way you do this i'd say i don't agree that the district court of the wrong standard so if you lose on that and we disagree with you and we decide that he applied the wrong standard if you could just go with a hypothetical case that would be helpful to me but i think the only hope because there are just been to facts and we would have to say that that that standard doesn't matter on these fa on the undisputed facts and i don't know how we do that given the allegations that you made in your complaint you know i sure would like to argue the supervisor reliability during all my time has been spent and so don't worry about the time mr burton sure you will let you make all the arguments that you need this is really important and i understand this that very much it's very important to your client so let's if we can pivot for a moment here to the director cox and work in baker and i guess the whole question here i do think that the district court use the appropriate standard here and i think the d the the attorney general  here has agreed that that was the appropriate standard and deliberate indifference to the supervisors and so the question for me is more on whether or not they were the law was clearly two to be on notice that get down orders combined with the firing birdshot at the ground violated the th amendment but i do have a little bit of posit there were no get town orders involved in that case it was more just  their faces in the way of birdshot but i think this is a hope versus those are getting close cases in that it was obvious that telling people to get down and then skip about the council just look at my understanding of the policy is that the idea was to skip shot and give a warning and then skip shot with the idea with that prisoners who were involved in altercations might be struck in the legs and not mortally wounded in order to break up a fight or restore order so i think what you're saying is that that you're taking issue with the fact that in this particular get a ration the idea was they  skip shouting you know towards the lower extremities of the people who are on their feet and fighting or for everybody else perversely the guys who aren't fighting order to get down on the ground and their faces are then and heads are it's excessive force but in fact it's this combination in your case of the combination of the get down order that puts people in harm's way that actually exacerbates the problem rather than making it better it's making it worse is that it  myself i'm really i'm just trying to understand because this is not the st case that we've had and i and there always a little bit different and so i don't think i understood this part of your argument until now you phrased read a little bit differently  look at it from the standpoint of the promulgated or of the policy and it seems to me although i think it unwise for the reasons articulated by kristen be firing birdshot in in the compliance phase of a maximum security prison that if the policy as written was intended to prevent greater harm at the assailants by hitting them in lower extremities what we're really arguing about here is the failure to think about what would happen if the shot was fired when there were innocent bystander inmates who were only complying with the get the order in the immediate vicinity where they might be of the initial policy or the way in which this correctional officer employed it without giving due regard to the fact that he had innocent inmates in the background that were likely to be here he was told don't worry about it and we asked worden cox's his deposition testimony on this point is in the record we asked him i'm sorry director cox ward baker we asked  her and her testimony on this is in the record it's cited in our bri they said well we didn't consider the safety of bystander inmates who we understand will be lying on the floor because that's what there's opposed to do when the skip shots are fired and if i could turn to but how can you just i guess the question mr burton is how if that's true how would that show deliberate indifference to the constitutional rights of the inmates i met you know the policy because first let me just back up a couple things i like to say number one while in the state prison is a thing but that is that's our challenge but we're gaited the policy did they know that they were deliberately indifferent to the constitutional rights of the inmates that the policy was yes and t and the director knew these bystander injuries were happening and yet they allowed this they probably gated and allowed t regard at all the people lying on the floor in my correct and in that or are not yes you're absolutely correct that is the evidence in this case that the district court had when it  finding that sadistic not that is not the case here and for that reason we can pigeonhole this better beyond all or and that were said with the robin's case or that the matters as in the regarding the firing skip shot legs lower extremities of people who are fighting but this case has the twist of the additional local policy telling everybody else to get down and his argument is that was a double whammy because it puts people's headspaces chest in the line of fire because the st policy says are going to be shooting at the floor and the nd policy says everybody who's not fighting get down  so we will be a church thank you