injury instead we have substituted a subjective standard to speculation sufficing three things i'd like to try to addressed in my argument this morning one i'd like to look at the  different perspectives that have jeopardy analysis which is how the officers these defended officers were trained to look at these deadly force and that has particular significance how the officers were trained in a qualified immunity and i'd like to explain to the court why we believe that in terms of the analysis of the facts in law in this case that has actually very little ultimate significance and lastly i would like to address what we believe how the district court  failed to make the proper inferences regarding the law in viewing the cross motions for summary judgment adjudication concerning jeopardy analysis what that is the way these officers were taught is training was the heart of the snow when the officers are trained how do they make that decision whether or not they're allowed to employ deadly force and this is training that these officers not only received in general but this training specifically given to them in the context of dealing with a situation when they're confronted with an armed individual with jeopardy analysis requires is that three questions received an objective answer one does the person manifest to show some intent to cause someone death or serious bodily injury to those the person have the means no other words for a weapon that could hurt somebody three is the threat required he may be able to make the fateful decision to use deadly force if the answer is no to water more of those questions than jeopardy for the deadly force is not justified in that context jeopardy has an attached to obviously this is terrible and in many respects a tragic result and and it's fairly easy in retrospect to make a lot of  week is you have an armed a person who was armed with an edged weapon who paid no tension to repeated orders to persistent beeline for a house in a residential area in the afternoon and here's where we're i think the problem is if the officers do unconstitutional one would indicate the fact of course of as are cited are not facts we believe the evidence shows them to ask the question and it's not that unique situation in that officers frequently confront people who are going through mental problems and of this young man of the times but they don't know that they don't but they have but in terms what they do know you could argue effect that is exactly the opposite desire to get the weapon out of this hand certainly though it's not merely a guess that there's something wrong with the young man in that the information that the officers actually had received were from several citizens who clearly expressed to the  the agency an information which was relayed to the officers that he was to be acting bizarre but not dangerously that it was sort of wandering in the street to the one point he with the sword and that he wasn't threatening anyone i think in terms of the house not being occupied your honor that we get that question certainly i think the officers need to respond to the facts they actually see in confront what happens here though your honor is when he is first shot in the back he is literally walking in front of this garage the officer who shoots them in terms of what the officer in objective we see doesn't even know if there's a gate there he doesn't know if the if that's a gate gain entrance to he doesn't know whether or not mr blanford intends to make the turn to the gate or not so i don't believe on that fact he doesn't have any constitutional right to shoot them there's no one in imminent risk the only person not see this is what i find it to focus in on because in the it's a really difficult issue he doesn't know whether that house is occupied or not or whether a child has just come home from school and is in the yard allowed to me reasonably and the assumption that somebody is in the house or in the yard and if that's true would be in real jeopardy from an edge sword at that point they could shoot they would be in real jeopardy if they were in mr glanton his immediate presence number one and number two that he showed any intent to hurt anybody in this case what the officers had viewed was yes he was non responsive but the is under spirited and in the facts on the part of the grief to that he never threatened the officers he never threatened them with a sword he never made any threatening language they didn't feel personally threatened by him so in addition to the report they have from citizens of no problem they've had the opportunity to observe him for several minutes and rather than trying to get away that from their perspective yes he doesn't do that so and they've also said if you don't run this or you know you could be shot and he simply from their perspective threat to somebody in the house or the yard absolutely and the fact that he had a sword further limits the imminent danger he poses as certain sort are going to contrast when you look at this court's decision in kernel versus city of rich quest ridgecrest where the person had a firearm you look at the civil ruby ridge case and you say these are people firearm has much greater ca  why would the assumption be going to take someone's life because you're saying you know something if he intends to hurt somebody and if someone's inside and if he gets inside and if we can't do anything in between violation i'm the most favorable set of facts lanford what's the closest authority saying that that those officers should have known that they were not intitled under the constitution  to take into account the possibility of a child or an adult at the other end of that sword and then and then in a position of not being able to do a thing about it i think to close this case was the courts that he had pointed the gun at anyone that he had his hand on the gun she said it wasn't on who's on the muzzle of the gun as he started to leak right after but in the situation in terms of the context of that chase runner though what close to him there's no dispute i don't believe that the assault rifle was certainly within reach of m i think that case is probably the closest case notice of what the constitution does or doesn't require and i think if you look at all the shootings number one there's no indication that he has an intent to hurt anyone objectively speaking whether there was a grunt for a growl it's turn the he is not holding the sword that way at any of the times let alone the third time when he's shot in the back after being shot a number of times this isn't a rapidly developing situation the defendant's own expert does not affect this case why i say that is because the basis of the supreme court decision clearly is what it was in a qualified immunity context in the sense that there is a split of messages in different circuits officer may be entitled may not be put on fair notice and qualified immunity may be appropriate but the factual context the unique factual context that he still with involves situations where you driving willful and wanton disregard of human life and all of the cases cited in that opinion by the supreme court involved the if you will a slight none of those cases were any of the ninth circuit authority relied upon there known this is not but they vary and now in terms of going in the aftermath of the so versus talking this mean that fourth amendment qualified immunity analysis is back to square one no we have hell's angel versus san jose that you don't need a case on all square force i would also add in a row isn't running low on time here but terms of the facts certainly the court did not view the  light most favorable to the point if in this case because if you view those you have someone who they know was emotionally disturbed who they know through the training should be approached differently they know he didn't they didn't harm anyone that he had made any physical or verbal threats that he was wearing headphones during most of the police contact that there was no grunt growl or they have stiffness by any point take swords for daytime burglaries and i will say the rest of our time thank you objective the reasonable and not a violation of the fourth amendment alternatively the officers are clearly entitled to call if i mean again to the facts and circumstances is developed in this case with respect to the claim that there was a violation under the fourth amendment we know that the issue is whether the officers have probable cause to believe that mr blanford posed a serious threat of great bodily injury serious bodily injury or death to others it boils down to the component ultimately in tennessee versus garner of the others full of the others the others are the potential residents of that they are the name anyone the occupants potential occupants of minutes to make a decision as to whether mr blanford posed a significant threat of great bodily injury to others and they did so in the end of the best circumstances they can it was the facts and circumstances created by mr blanford that gave know he rang the bell the officers i don't believe testified that they saw him ring a bell in fact the officers did not see him approach the front door that's the testimony in light of the plaintiff but the officers never saw him do that the officers testimony as he'd be lined across the lawn across the driveway toward the back of the residence on the side of the garage but even if you took that testimony that in fact assuming the light most favorable plan if he went up to a front door and then he went over around the garage he then  having been aware of the police officers were present that they were screaming at him to drop the sword and he refused to do so my own eyes have to respectfully submit your honor that a peace officer has an extremely heightened concern when an individual engages in a conduct as mr blackford it there's no question that's one of the scariest situations and officers present and with if they're wrong and if mr blanford is in a rage to take out someone in the home and he's completely ignoring them thinking if i move slowly and deliberately and i move right into physical evidence of what occurs with the weapon and mediately upon the officers approaching to to disarm a suspect which is exactly what the officers testified to is not a question of fact any longer why not because the fact is the dispositive in this case and for several reasons the court supreme court's now refined for us that they do want the analysis for qualified immunity to look to factually specific case law with respect to case law that involves what these officers were confronted with there's no case law that shows in the report a case that we were able to locate that describ circumstance similar to that faced by officers angle in anderson in this case we we have several that might be arguably close the possibly the vehicle related shootings are close but again the supreme court found it the most recently this year that those types of cases clearly going not have an established law that would put an officer on notice that they have their use of deadly force was inappropriate  reasonably mistaken in their belief mr blanford we know now in hindsight was headed home but the officers didn't know that they could be reasonably mistaken in their belief that mr blanford posed a significant threat of great bodily injury or death he was making good  escape it turns out he was going into a residence but his actions his conduct caused those officers to have a reasonable belief or reasonably objective belief under the facts and circumstances case that their actions were lawful under tennessee versus gone and by the other cases there are a couple of cases that might help out perhaps the four vs childers although ford involved the fleeing of the armed bank robber but we know that the basis for the use of deadly force in that case had to do with the potential threat of that suspect to others and those were others unknown to the officer which i think is significant they could not identify any particular individual who these this bank robber posed a threat to and likewise that then would tie in to judge newman's analysis about whether they needed to know someone specific or not that's not clearly established we would submit and therefore qualified immunity is appropriate  likewise the kruger case we do have an armed assault but the individuals running the officer believes he may be drawing the knife on him he believes he might turn around but even though there's an uncertainty the courts have found that that uncertainty is not sufficient to overcome the reasonable conduct of the officer and if that even if there's a question on that qualified immunity would apply we looked at how we're going to determine whether this falls in the hazy borders the various cases that have been established no case better fits that hazy border than this case for qualified immunity purposes now that the supreme court has given us the guidance and how can so i would respect disregarded officers clear verbal commands he admits he knew there were officers present he admits he ignored their verbal commands he admits that he was trying to gain entrance to a residence certainly the protection of the residents and the community at large is necessary under these circumstances these officers had and could not then moments to decide seconds to decide whether they were going to allow this person with a deadly weapon i consider that was not in the evidence presented to the district court that that is not in the record because counsel have waived that right to assert that fact at the oral argument at the district court and in the final pretrial order counsel indicated the facts are undisputed and moreover your honor at the oral argument counsel conceded which is a judicial admission that nothing the plaintiffs has said should have any bearing on the outcome of this case and i would respect the backyard it's no different than mr foret jumping over the fence of the yard when he was escaping from the office really obvious or shot through the fence and injured him they used deadly force through the fence because m was a threat to others in the residence in the next door residence and that's the same thing that we have here your honor if there's a heaven forbid a young child and mother in that backyard sitting by you know their their patio and then mr blanford now is going to use his sword on them the officers can't take that risk and we don't want them to take that risk i would respectfully submit your honor in summary i believe that the clear feuded evidence has established that there was not a violation of the fourth amendment in this case alternatively we would respectfully submit that the haugen case is now dispositive there is no clearly reported case law nor there is there any case law close to this case that would provide us with this guidance and therefore clearly there is no clearly established law that would put a reasonable officer in the position of officers hangal any understand on notice that their conduct may violate the rights of mr plan for i would also submit that it was his conduct mr blanford conduct that gives rise to a reasonable but mistaken belief that their conduct was lost meaning the officer's conduct was lawful and that's that the malley versus briggs analysis essentially but but in  parting and i would like to add lastly that that it's clear that these officers were making a split second decision it might have been steps in inches as opposed to half a second but it certainly was nothing that evolved five and it's been reported in several authorities since then in the case law and i think it's very telling in this case and that is there is no right here in feud under federal law that one will be free from circumstances where he will be  here and in each instance they must be constitutional we are talking about the taking of life we are talking about when does government sanction the taking of human life that's what's that group and we objective standard not just what the thirty minutes he had has lots of people he had walked miles he discussed the fact that the exact same thing that happened sometimes earlier to one of the officers where no one was injured the person obviously went back to it's residents i mean there are only so many sort of like yours in this community i mean this is a guy who's distraught obviously they know it in the same manner as people outside this courthouse and don't respond to officers because of their problems but the fact is that it must be and judge you say you story but at the time a media threat they said well and remember just i'll just take the third because i want to repeat everything the third shooting because that's what a purply jake and there's no question about it and it's stipulated the facts are stipulated of because they stipulate that taking it the best and so forth in their favor he turns to start walking away if for no intent to shoot him again this is a semiautomatic they have to fire every time they want to hit him five or ten here with guns you have exceeded