case was put in a very awkward position because the supreme court's decision in white vs poly had just been issued and that the district court clearly was wrestling with a clearly established problem of a choose to address the evidence in this case because we have video which is becoming more and more prominent these cases because we have video there really is no dispute in fact the only disputed facts at the district court could grasp onto were an argument that maybe mr ortiz had been for mr pena i'm sorry had been somehow flailing because of the taser it's really reasonable answer says inferences to be drawn well and that's a great question except that in this case you see that mr pena very clearly and it's there's no doubt about it he grasps the knife in his left hand this is not some involuntary action on his part where he was scooting forward toward the officer because of the taser applications perhaps you could remotely draw some inference in that regard but the volitional act of grabbing the knife and raising it at the officer when he's in less than five feet which is understood the officer i mean is this court said in scott versus henry's the officer doesn't have to wait to see the glint of the knife any reasonable police officer seeing this individual under the totality of the circumstances and unfortunately the district court tried to parse out individual facts saying well maybe he could have been flailing or maybe he had the officer had some duty to retreat but the officer did back up he backed up to the threshold of the door where he's got a staircase behind him and a domestic violence victim that he can't focus on what's behind him when he's dealing with an a knife or the night falls out he's then scooting forward which is very clear scooting forward toward the officer who is yelling at him and pointing a gun people don't involuntarily scoot towards uniformed police officers point anything to you why police officer well i don't know that she's now downstairs and you know she's on the she's on the on the stair on the landing yes she's on the staircase behind him the officer quite honestly doesn't know exactly where she is because he's obviously focusing on focusing on mr pena at the time so i think under the st prong because as the supreme court said in scott for says harris if the inferences are overwhelmingly it by the video then there is no material issue of fact and i think one other error that the district court made was to focus on the the initial crime the domestic violence many of these cases from from matt as to george to let a lot of these cases start out with relatively minor offenses whether it's a traffic stop or domestic violence but the focus really needs to be on what's the offense that the officers responding to when they  deploy in this case deadly force circumstances change and it's the supreme court has told us time and time again they're rapidly involve evolving stressful tense situations the officer has to respond to and frankly i think these officers used commendable restraint in that they attempted with three cycles of the taser to contain mr pena unsuccessfully unfortunate because then he grabs a knife and came at the officer who then fired one round and it's clear that the officer still believes he has the knife i mean i've watched that tape i don't know how many hundreds of times but you can't tell where that knife is but in the one point six seconds between two shots and then mr pena actually sit up and is still on top of the knife and the officers yelling he's still got the knife he's got the knife so i think when you look at the totality of the circumstances even on the st prong of qualified immunity the actions of the officer are objective lee at the officer who at that point feels he has to remain stationary in the doorway if you're a city if you're in the pacific position there's not much that you can do other than other than what in the boy scouts used to refer to as the blood circle that is what you can reach with with the tip  apologize your honor but officers are taught in that split nd to shoot for center mass it would be nice to say that the officer could somehow focus on the hand that has the knife but if the officer misses he doesn't know what's behind him and  the officer gets stabbed so and i apologize i didn't mean to demean the court but but richard retreating from a guy who is who is seated and can only scoot himself is not terribly difficult for an officer right  and as mr pena continues scooting forward the officer continues backing up and telling reaches that threshold at which point he doesn't know what's behind him shirty good luck but then he becomes vulnerable to the individual who has grabbed a knife nobody told mr pena to grab that knife he did that of his own volition in the face of a uniform place officer pointing a gun at him and there's only one inference that can be drawn from that is that he intended to stab the officer at the officer if you then go to the which course this court in even if there was some inference that could be drawn on any an issue of fact that doesn't end the qualified immunity inquiry there may be an inference or a material fact at issue doesn't end the qualified immunity inquiry and we then have to determine was there a clearly established law that would have put these officers on notice beyond debate under the facts of this case which is supreme court has said in excessive force cases it must be factually specific that would have put these officers on notice and as the supreme court said and she had no matter how many times the such as stepping back using his taser again telling decision to drop the knife warning to student he was going to use deadly force and telling brumby led to discharge his taser in light of this expert testimony a reasonable jury could conclude alternative techniques were available to subdue to seat rather than use of deadly force so what's the response of the district court and as this court decided in scott versus henry chin these situations officers are not required to use the least intrusive but these officers in fact did so this is this is wrong as a matter of law was or no but the expert and this court and the supreme court have said and i'm looking at that list of course conclusion he says a reasonable jury could include alternative techniques were available to subdue to see rather than the use of deadly force so what's wrong with that conclude the affected alternatives are available doesn't mean that they're required as a matter of law ok you have got and how do we determine that were the required are not and the district court said that he's that's a jury question i have to look at the totality of the facts here and i can't determine that so he says i need to refer that over to the jury but i don't think that in the supreme court has said in she hand that the mere suggestion by an expert that alternatives are available right is not sufficient to overcome summary judgment we can on monday morning what if that if the facts if the facts are are are without without material dispute but but where is the dispute as these officers tried to taser three times it didn't stop mr pena they tried that the mr pena kept coming to the officer the officer has no duty to retreat but in fact did the only and we can all see i guess from the eyes what the officers are saying if there still is a reasonable material fact question about that reasonable inferences that can be drawn from the from the video in the video simply can't and the existence of any material fact question so here we have these let's see they have these officers who come in with guns drawn to a domestic violence situation to a domestic violence call that had ended and had ended for some time before they even got there then we have one of the we have two officers which was never addressed by the other side so far we have a nd officer who has who who has to be ability to have the taser there is not and the district court didn't just find that there's less altered or as a part of the least at least intrusive alternative means is that variability of the nd officer to help to tase to do something and diminish this need there frankly to me there was no need ever for deadly force i want to address a few of the things we've heard this morning this focus on the so called mistaken focus on the underlying crime gra analysis is an analysis of a set of factors and the district courts the courts and gage and they look at each factor and come up with an answer and then once you have an answer for each factor you balance them  based on the totality of the circumstances i think trying to say i'm not saying that what mr pena did and front of his conduct in front of the officers might itself have been itself a crime lame and so am i would i think there's a question about if he grasps it he definitely does raise it but he's on his he's on his seat and he was never able to regain his seat from the initial tasing and you could tell that the taser is working because he's arriving in agony after each after each and in between each deployment we're not saying that there's a duty to retreat no there is no legal duty to retrieve that within the ground analysis you certainly are supposed to consider whether there were less intrusive alternatives for example re deploying taking a step back saying i will shoot you they never even said i will take  issue i think it's a it's a mischaracterization that he's doing and attacking the officer i think that's a definite question because like your honor pointed out he was talking to his wife the whole time why did you call the police on me wh that a reasonable jury would be able to question is that all not withstanding was he a threat from his seat lamely holding this knife that that had fallen out of his pocket  it's also a question of oh he's got a knife he's got a knife that what i hear the officer saying is my for knife knife from the moment the night falls out of his pocket and it was on the ground for a while before he even scoops across it a reasonable jury can certainly look at that and say the only reason he sat him is because of the presence of the knife and that's certainly not because of the threat he posed  the clearly established question there's case law standing of that there's less of an interest of using deadly force on this honest subject who's  ground who's already wounded and certainly for the nd shot who's already mortally wounded who's already been shot at there's enough clearly established law on the st that he's already on the ground the taser is questions for me thank you thank you itself this court said in georgia versus morse although in that case where the individual was in a walker and had a gun pointed down at the ground they said any harrowing gesture with a weapon is sufficient to justify deadly force that's clearly established law i don't think anybody could draw any inference that mr pena grabbing that knife in less than five feet from the officer and raising it toward the officer is anything less than a harrowing gesture that as a matter of law this court h justifies use of deadly force i have yet to hear any clearly established case to the contrary which would have put these officers on notice beyond debate that their actions in those split seconds would have violated some clearly established law so whether there's an inference or a material issue of fact that he jury could draw from the nd prong must be addressed and that is whether there is a clearly established law and certainly we've all heard several times from the supreme court how important it is that that not be a generalized statement of the use of reasonable force but ments must be specific to the facts so that any officer would know beyond debate that his actions in those split seconds would violate clearly established law and i don't think that exists so under either probably and we believe both we believe qualified immunity should have been applied under the law that certainly the supreme court has made clear since the judgment all had an opportunity to look at this