hear argument first this morning in case sixteen three sixty nine county of los angeles versus mendez mr rosenkranz thank you mr chief justice and may please the court your hours when a police officer reasonably thin to himself as deputy crowley did here this is where i'm going to die he has to be free to make the split second decision to defend himself and those around him any legal rule that says that that is unreasonable is untenable you know i have a it is a very moving statement and one that i totally agree with but we're not asking the police officers to make that choice when they feel in danger they're going to take the step that's important to them and i think that's absolutely right the issue is who's going to suffer that loss who's going to take the financial penalty of that loss not the death of the death of the officer and so the question to me is not that one the question is when does the police officer pay the victim who is suffering that loss if the victim had nothing to do with causing the loss underscore or was justified in whatever he or she did to protect themselves so let's take the situation which i think you can see it in your brief that of the police officer who in the dead of night and dressed in casual cl breaks a window in someone's home and walks into their home and we've given them a second amendment right to victims people who own homes to possess firearms to protect themselves and the victim sees a stranger breaking in who doesn't announce themself doesn't have a uniform and is standing there breaking in the victim shoots that police officer or she points a gun at that police officer and the police officer takes a gun and shoots them and injures them or kills them now who bears the financial loss in that situation the homeowner who has a right to defend him or herself and say it's my life or yours or the police officer who has taken an reasonable action in breaking into a home in the needle of the night without announcing him or herself that's the question of under me understood your honor in the answer to that question is quite likely the officer but not because of the provocation rule but rather because the officer has committed a clearly unconstitutional act which is not just entering but also failing to knock and announce clearer by aleisha of clearly could recover one is an unconstitutional violation that proximately causes an injury ok that's the theory you come to and the second is if there was  an reasonable use of force by the police officer you're taking out of the equation the second way of recovery yes your honor the use of force by the police officer at that moment was reasonable but the police officer can be held liable for violating clearly established law and in particular here failing to inform the homeowner that this is an officer entering and what proximately flows from that the problem with the latter theory that is the provocation theory as an excessive force matter is there are multiple problems the first is it imposes liability under plaintiff approach for a new breed of constitutional tort which is creating a dangerous situation without regard to whether it's a search or a seizure or under your scenario justice sotomayor even the ninth circuit test there is something very encouraging grew is about holding an office or a libel for use of force that is not excessive at the moment at which it is used and therefore is reasonable and knock and announce violation and that violation is a violation of clearly clear yet i was of course in this is a qualified immunity context everything has to be a violation of clearly established law quite right so i guess the question is why is this case any different under the words this case you don't have the not going announce violation you have a different constitutional violation which is an unauthorized entry and why would it not be the case that this that the death or injury in such a case is also proximately caused by that violation another words proximate cause says what kind of things are forseeable and it says and it sets an outer balance and it says totally flukey random things we're not going to say approximately caused but it doesn't seem to me a flukey or random thing to say that where there is an unauthorized entry into somebodies home violence may well result and so the proximate seems to flow in much the same way maybe not to quite the same light but quite the same obviousness but in much the same way as in you're not going announce example you're out of it so just be clear we are we're now talking about when the constitutional violation is an with arised entry into somebodies home for a very simple reason your honor we've got to start with a clearly established violation here the only one in play is a failure to call a judge in advance and for example get a telephonic war that is an unauthorized entry into somebodies home yes it is and that is the clearly established constitutional violation why isn't the proximate cause why is why wouldn't it be that a death or injury that results when somebody barges into goes into somebodies home without legal authorization that one of the things that foreseeable can result from that is a shoot em with your eye the answer is that calling the judge in advance would not have made a bit of difference in this case well i suppose this case police arrest without a warrant a man who's having dinner with his family and friends white collar crime they did not get a warrant they did have probable cause they could have gotten a warrant and he sues and later the charges are dismissed it was a mistake but there were still probabl and he sues for fright and humiliation under your theory you'd say well even if he got a warrant he'd have the same frighted the militia and so there's no damage that's correct your honor because the warran requirement then we simply have no way to enforce the warrant requirement so you stand by the proposition that if there is an unlawful entry and then lawful arrest because of a lack of a warning no damage that if the search would have happened no matter what yes no maybe humiliation in the shore because i mean if if the warrant would have prevented that humiliation then you could sue for now let's assume that it wouldn't the answer that i never got to you to justice kagan on the facts presented in this appeal the judge would have granted the warrant no matter what because the deputies had probable cause and the deputies then would have done exactly what they did here and the result would have been exactly the same calling the judge would not have changed the outcome and that's why there is no probable cause and it's telling that they don't write very well you know process proximate cause sorry it might very well change the outcome when somebody shows up with a warrant they show what they show the warrant they have legal authority people act very differently than when somebody shows up with no warrant and says i don't have authority i'm coming in anyway that's a very different set of circumstances that a homeowner has to respond to and what is force what for happens where there is a warrant is not the same thing when somebody when a police officer has legal authority tells the homeowner he has legal authority the set of results that happens is just not the same as when a police officer says i'm here i don't have any legal authority i'm coming in anyway your honor with every fact that you beyond not having a warrant is a fact that you've inserted into the scenario that is all about giving notice to the to the suspect warrants are not designed to give notice to anyone you could show up warrants in your pocket and you don't see any think about it although that would seem like very silly stupid police work but the prototypical case when somebody has a warrant is that they tell a homeowner they have a warrant and that they have a right to  be on the premises that's what usually happens and similarly what often happens is that when somebody doesn't say that to a homeowner they are making it far more likely that violence will ensue and officers announce themselves before executing a warrant is not the fact that they have a warrant but because there is a separate constitutional command of knocking and announcing with or without a warrant that was a separate mistake that the officers made here that was held to be not a violation of clearly established law and therefore can not be the basis of liability and it is telling that every time plaintiffs refer to what caused this injury and every time the ninth circuit refers to what caused this injury it is a reference to start allowing unannounced without warning without notice all of the things that you've woken in into your hypothetical that is not the violation of clearly established law here the violation of clearly established law here was the failure to get a search warrant in advance and search warrants this court held in grubb's are not designed to provide a topic of conversation or to provide notice to the suspect knock and announce is designed to provide notice but that can't be a basis of liability here why do you break what is everyone breaking it down in this way that's unreasonable and clearly unreasonable and the answer to yes is you know look at all the circumstances there is one they went into the house without even telling the woman then they break into that they go into the other house without a warrant without telling anybody i'm not saying that those are independently violations of the constitution but they might be where you are if you look at the whole situation say you know what this is like it's like the classic tort case somebody pushes somebody else into the street where he is run down by a negligent driver is the individual supervening cause negligent driver of course they're liable because that's what happens you expect negligent drivers and similarly you expect people to defend themselves that's why what's wrong with that where you are what's wrong with that is what it is that this court's methodology is to why did this specially in cases involving personal liability to officers is you start with a violation of clearly established law you started just as prior with the seizure the seizure was not a violation of clearly established if you break it down temporarily second by second but if you look at the whole situation right so i see my rebuttal time has started let me answer very savior of a very briefly though that that what you've done now with the excessive force piece is to focus not on the decision that the officer makes at that moment which is the critical decision under graeme but to find out what he did was an reasonable even though the court of appeals and the district court found it to have been reasonable at that moment thank you your hon sarsi mr chief justice inmate please the court we have two questions in this case and i think i'd like to pick up with where my co counsel left off which was with justice briar's question which i think goes to the first question presented and i think the question was why can't we just say that we can consider the facts of causing the situation is part of the reasonableness inquiry and the answer there is because the question that we're answering under graham is was the officer's force and use of force reasonable in the circumstances that he faced and those apparent those those depend really on two sets of facts one what was the individual doing was the person a threat to the of a weapon a propensity to use it was a member of the public at risk at that was a fleeing committing a crime etc and two how did the officer respond to it what were the officer's options what did the op was the officer's use of force proportional etc it doesn't ask whether the police officer created the situation it takes stepping into the shoes the situation the law you know that every grid case we look at all of the car chase cases every single one of them we were talking about the situation facing the officer we look at everything the officer and the victim did that led up to the moment of confrontation because all of the facts that you point to as the police officers knowledge of the victim are facts that usually are intertwined with what led up to the incident so if you look at a car chase you're looking at a person who over extended period of time has driven a car crazily has put other people at risk has swerved  cars done a series of things that the officers aware of because he participated in the chase and at the moment that he's looking up what the victim what the defendant is doing he says he drove the car and almost hit another car he's pointing the car at me he's going to hit me and put you're looking at both sides of that equation you're not ratcheting it up on one side or you're right that you're looking at all of the facts and circumstances but those that bear on whether the use of force is reasonable and just to give an example in plum off which is one of the car chase cases that the court address the district court in that case said well the police officer was chasing him so the police officer helped create the dangerous situation in this court and footnote three of its opinion said no police by doing their jobs don't aren't responsible for creating the dangerous situation and don't forfeit the ability to  do their job because they have to know they have to know what reasonable people will do i mean if if a nine hundred eighty three clean clean and if they jump in front of a car of a total stranger on the street and the person is coming at them should that person behind the wheel bear the brunt of an injury because the police officer says the car was coming towards me so to save myself i pulled the gun and shot them even though this is joe blow who's never been arrested doesn't own a gun never knew the officer had jumped into the street if a normal person did that they pay for the victim's injury why does a police officer get a pass on that well as a general matter section one nine hundred eighty three is about courts setting clearly established constitutional rules for the police but the police have to follow it's not a question of asking whether the police just behave reasonably in the abstract but in terms of each thing that the police officer dead and whether it followed the establish police officer to pull a gun and shoot a driver that has no guilt associated with him or her not an armed felon just a normal person to stumble into the street and say i'm a police officer i'm going to seize that person and stop myself from being injured by shooting their person well i think you would ask him that question whether there really was a threat that the officer was responding to and i think you're positing a situation in which there really wasn't a threat there but i think in this it circumstance everyone recognized that there was a threat facing these officers who were going about doing their police business in good faith and they see a person pointing what appeared to be a gun at them and what the ninth circuit said is we're going to second guess everything else that you did that day and even though this use of force was reasonable under graham we're going to hold you liable for council it i just want to put the discussion so far this morning in the right framework we're talking about the second question presented right none of this seems to me to be involved  provocation rule in the ninth circuit at least the question about did they get a warrant to knock it out how do you understand the ninth circuit's provocation rule in distinction to what we've been talking about in terms of proximate cause and things like that sure the provocation rule takes under the ninth circuit's precedence a reasonable use of force and deems it unreasonable because the police made an earlier constitutional mistake and we think that that is just flatly wrong you you should have gotten a search warrant earlier in the day but you didn't and that led to this i mean the thing that's wrong is what the ninth circuit is doing which is saying the police created the situation by doing things that are not constitutional violations but that the ninth circuit later finds with the benefit of twenty twenty hindsight to be reasonable and reasonable and that's actually what we've seen we've had this doctor in the ninth circuit for twenty years now it's incredibly ill defined does not put in place clear rules for the police and the kinds of things that the ninth circuit is second guessing is maybe the police should have used a hostage  negotiator for longer before going into the house and alexander that's one of the sewage sleeping outside of the house they tried to spend a month trying to talk to that guy they went to his house use the hostage negotiator or the situation and she had where there was a very difficult situation with a mentally ill woman who was threatening the police and the ninth circuit said the police should have tried to calm down the situation for longer i mean these are incredibly difficult to terminations that are being mean and under the ninth circuit's rule the ninth circuit's just second guessing doing exactly what this court has said shouldn't be done but you know that i think that a little bit different than the probably cation rule twenty five a where they say there was no warrant and therefore there is law that those are two different things right we understand those to be the two alternative holdings from the first question presented and the second question presented so the second question presented isn't talking about whether the use of force is constitutionally excessive clearly established violation it's talking about was there a violation with the entry and did that proximately caused the damages that issue and if i can address that question we just think there's a fundamental problem with unites the can i just  do you agree in general before you address the question in particular do you agree in general with that frame and that if there is an independent constitutional violation and if it does proximately caused the injury then there's a action in general yes i mean ninety three imposes liability and damages for clearly established constitutional violations and although this court has had very few opportunities to address causation in the section one hundred three context it has said there's a general matter it would start with for our principles and i think that those would include proximate cause ation and superseding cause principles but we have a problem in this case in what the ninth circuit found was the proximate cause of the injuries in this case was the failure to knock and announce but the fail to failure to knock and announce was not a violation of clearly established law the officers have qualified immunity for that seems fair enough but then the question might become whether here or on remand whether an unauthorized entry where there was a clearly established violation whether one could say that that was the proximate cause of the shooting yes and i think there's two actions that question one about this case and second more generally about this case the analysis by the ninth circuit was that it was the knock and announce and not the warrant and if i could just illustrate this in this case you had officers that did not have a warrant and did not knock and announce but imagine that they did have a warrant and still didn't knock and announce what the ninth circuit said was the problem was the startling entry so with or without  warrant you would have had this problem from the now can announce but as we discussed the knock announces immunised as a general matter i think the point that petitioners were making an argument in there brynn the brief is well taken that the scope of the risks for a warrant violation as opposed to the that in an authorized entry produces violence not that it always or probably produces violence but that it might produce violence in the way we kind of ask when we do proximate cause analysis right and i don't think that we would say that your actions what are the risks that make the conduct torturous what bad things do you think are going to occur if you do this and in the warrant context we're talking about police showing up at the door and no we don't think that it is a generally a reasonable reaction when police show up at the door with or without a warrant that you'd react violently and that's what grub said is that when the police come to your door you submit at that time and you can challenge the warning court later when dozens well and also if you could get to justice kennedy's hypothetical ok just to finish this but the court has recognized you have a problem in the not going to context that you don't know that they're the police and so in that context there really is a potential risk of violence once you know that there the police citizen is expected to stand down justice kennedy hypothetical if i remember it i think is an arrest without probable cause and the damages not all there is probable i'm sorry there was a failure to get a warrant yes there should have been a war right i think of the question you would ask in that case is the normal proximate cause question about what kind of damages you know would there be from a failure to get a warrant in those circumstances what's natural and foreseeable so i'm i wouldn't say you know if the humiliation is the same either way no damage i'm not saying that it depends on whether proximate cause and you could have gotten a warrant i'm just saying that you look at what actually happened in determine the natural and probable consequences from that i mean the court just maybe one more sense the court has not had a lot of opportunities in the one nine hundred three concept context to work out these probable cause cases i think in some of the court's other opinions you've said probable cause is a very flexible concept courts of appeals have a lot of experience doing it this court last and that's why we would say to decide the second question presented very narrowly and not get into all of these western thank you could i ask a follow up on that i justice kennedy's hypothetical there had been an application for a warrant isn't it entirely possible particularly under the facts that he had publicized that the judge would say you don't need an arrest warrant in this situation you can ask the defendant so attorney to bring the defendant and then surrender i know that's happened quite a few times sure that's something that could happen thank you thank you counsel feldman thank you mr chief justice and may please the court if the court reaches the constitutional issue in the case we believe that the court should adopt the following standard where a government official takes action that for creates a need for the use of force and results in that use of force graham scott balancing should be applied to determine whether that action is objective and reasonable and we are not as petitioners council suggested suggesting to this court that it adopt a new breed of a constitutional tort this court has always focused on the totality of the circumstances and there is a long line of cases culminating in kentucky vs king that recognizes the constitutional significance of predicate acts standard the standard that we suggest that this court adopt is that where government official takes action that forseeable he creates a need for the use of force and results in that use of force graham scott balancing should be applied to determine whether that action is subjectively and reasonable under graham and scott courts would of course consider the governmental interest at stake the nature and quality of the intrusion on the individual's fourth men interests and the relative culpability of those affected by the decision are you defending the ninth circuit statement at page twenty two a petition appendix here the district court held that because the officers violated the fourth amendment by searching the shack without a warrant which proximate cause the plaintiff's injuries liability with proper that is an appropriate way to find liability in this case i just don't see the proximate cause between failure to get the warrant and what happened here well there are two proximate causes here one proximate cause was the unlawful entry the entry was unlawful because there was no warrant th second proximate cause as the lower courts recognized was the failure to announce and it was in those circumstances that are the objective leon reasonable behavior of the op was not the second one i thought the the failure to announce they determined and i understand you to accept it that that was not a violation of clearly established law that's right and so what that means is that the cause of action cannot be brought but the conduct doesn't disappear and proximate cause principles are not based on whether a legal violation proximately caused harm but whether the conduct caused harm and the conduct that caused harm in this case was the entry without giving notice if you take either one of those away then of course the harm doesn't occur but that's another way of saying they're both necessary proximate causes as well as but for cause and when we look at the kentucky versus king line of cases what we see is that this court has recognized that there are circumstances in which events allow police officers to take certain actions plain and z that was a different context of had to do with an exception to the warrant requirement but the problem with your test as you articulated it and as i understand it is that you start out with something that is said to be unreasonable but it is not a violation of the fourth amendment and you impose liability for that decision not for the ultimate decision to use deadly force and this has come up in the situation like sheehan where there's a dispute about whether it's reasonable for you have a mentally disturbed person and let's say the person has a hostage in the house or there is an innocent person there and the mentally disturbed person is acting in a way that seems to present a serious threat to the innocent person in the house and there's a dispute about whether it's reasonable for the police to enter as opposed to waiting for a psychological expert or or they they only have negotiations for a short period of time before they enter and it's argued that wasn't reasonable that's not good police practice they should have waited a longer period of time and you end up imposing liability and then once they go in then they're in a in a life threatening situation and they use where she'd end up imposing liability for what is arguably a violation of the best police practices or something that is recommended by experts in this situation that's what's anomalous about the rule that you've that you've suggested i wouldn't agree that it's anomalous but i also think that it least in this case unlike in she in the court doesn't have to decide whether objective lee and reasonable behavior alone is enough because we also happen to have an unlawful entry which wasn't present in the sheen case when the officers entered they were no different than trespassers and so that's a different way of looking at the situation and i agree that that's a you know that's that's th the question that you would think you would address under the fourth amendment you start out with the fourth amendment violation and then you say did it proximately cause the use of deadly force but not the rule that you suggested where you start out with something that isn't a violation of the fourth amendment whether or not it represents the best police practices are let me give you a few examples justice alito of why it's important to focus on the predicate conduct these are real world examples in decisions that have been and circumstances that have been addressed by the department of justice and this court in chicago there's a problem with officers who jump out of unmarked cars wearing plain clothes brandishing guns it's not a constitutional violation there's no seizure but it's clearly unreasonable and it leads to the use unnecessary use of force well that may very well be a seizure if they if they interfere with the liberty of the person who they approach then it's then it's a seizure it's to stop it and that would be the situation in the hypothetical that justice sotomayor mentioned which was presented in your brief where the police officer jumps in front of a car and doesn't allow the driver enough time to stop and then as the driver is approaching the police officer the police officer shoots that's a seizure and so you look at the entire seizure the jumping in front of the car plus the ultimate shooting to determine whether it's reasonable and there's nothing wrong with that approach either in the kentucky versus cain argument i think just referred to that as the holistic unreasonable misappropriation if you look at that from the moment of time that the officers interact with somebody to the moment that there is a seizure here that's the moment of that the officers arrived at the mendez's home until the moment that the officers fired their weapons into the mendez's home and injured them which effectuated the seizure but then everything mehmet doesn't prohibit unreasonable interactions but what it prohibits is unreasonable searches and seizures so it's entirely appropriate to look at the whole seizure but not in this chain of interactions that includes a lot of things that happened before there ever is conduct that implicates the fourth well in the examples that we've given where the police officer goes into someone's home in the middle of the night or stands outside someone's home brandishing weapons or jumps out of a car brandishing weapons that's the beginning of the interaction and if we look at the totality of the circumstances is this court has repeatedly mandated among those circumstances is the objective or unreasonable behavior of the officers that foreseeable e and directly leads to the use of force so whether we look at it through the kentucky versus king framework which is really where unreasonable or unconstitutional conduct prevents an officer from rolling on certain circumstances to avoid liability when we look at it holistically there is an enormous amount of evidence in this record what that what these officers did was unreasonable so how is that that is what i think the argument on the other side is in response i was looking saying look holistically the seizure is the shooting in his in his injury ok right question is would any reasonable person think that that was unreasonable now we break it down was wrong but getting a warrant made no difference so they're saying zero plus zero plus zero it must equal zero ok but i think if the argument i'm trying to put that i would i want to hear the answer to right and i think the flaw in the reasoning is that what we have here are two necessary proximate causes so what that means is if you take one away the harm doesn't occur if you take the other away the harm doesn't occur so it really isn't zero plus zero plus zero equals zero each of these actions the entry and the entry without notice were necessary i don't i don't see you say if you take away one that if you take away the  failure to get this the search warrant the harm still occurs right because you know you so why do you look at that as the basis for nine hundred eighty three liability because what they're doing mr chief justice is they are changing the legality of the conduct but they're not changing the conduct when you change the legality of the conduct but you don't change the conduct of course the senate is not censor it's and this i think is the argument on the other side then it's irrelevant then where is the search warrant is not going to change the conduct but this is a failure to get the search warrant is the only thing that violated the standards under nine hundred eighty three so it's not a proximate cause at all of the conduct because as you just said it wouldn't change it in any way the conduct is what we used to define proximate cause the entry we're going to introduce without notice right that either did or did not proximately caused the harm right it has to be illegal but but then why are we talking about the failure to get a search warrant why and why did that make a difference it made a difference in this case because it is what makes the conduct of the police officers unconstitutional does not proximately cause well the conduct of the officers proximately caused injury  about not understanding mr feldman why you're quite making this distinction i mean it why isn't it just look the entry without authority the entry without a warrant that's a clear but for cause of the shouldn't the shouldn't wouldn't have happened if there hadn't been the entry right right now the question is is that a but is it a proximate cause of the inquiry and it and it seems to me you have to make a case and tell me if you agree or don't agree you have to make a case that an authorized entry that one o of the things that forseeable you can happen with an unauthorized entry is that the person whose home it is will react with violence i agree with you completely and of course the foreseeability issue was the issue that was extensively litigated in the trial chords but i don't see how you can agree i don't think it's addresses at least my concern which is why in what way did the failure to get a warrant because everything that followed it was the entry that card was the entry i'm with you there i understand that but the failure to get a warrant did not cause the entry as i understand courts applying proximate cause analysis we begin with the conduct and we ask ourselves to death conduct directly that's the proximate cause and she did that conduct directly lead to the harm right if we answer that question yes we then look at whether that conduct was there maybe i'm just asking the same thing over and over again and if so i apologize but how did the conduct the failure to get the warrant leave to the entry in this case warrant because that's why we call it a provocation i guess because the entry which caused the confrontation is not right i wouldn't say that the failure to get a warrant because the entry of the officers of each of those two different kinds of entry are very different counsel if i could interrupt you to ask the question why is it that whether it's authorized or not you don't think it's going to prompt violence the fact that you have a search warrant you may have a search once i've got to execute a search warrant to pick up this armed and dangerous felon you may still think that's going to prompt violence that doesn't have anything to do with the nature of the entry you're going to have to make later on not going announce does because if you just burst  person may reasonably think this is a burglar but if you're not going to announce it doesn't that does affect the the nature of the of the conduct but having a warrant whether it's authorized or not doesn't if the officers don't have a war and they enter they are trespassers the purpose of the fourth amendment is to treat them as trespassers but let me give you two situations situation as a the officers get a warrant they  go to the residence they knock on the door the resident opens the door they say we have a search warrant we're going to search your house all right situation b they don't get a search warrant they think they have ex circumstances they knock on the door and they in both cases they're uniformed police officers they say the police officers we're here we're going to search your house we don't have a warrant we think we have we can search your house without a warrant because we have an exception to the war requirement now is there more is it more likely that there's going to be violence in the second situation than in the first situation i don't see why there is i would agree your honor that in those circumstances would not be more likely that there would be violence in one situation or the other well then i don't see where there's proximate cause of the proximate cause comes from the two things that the officers did that led directly and forseeable lead to the confrontation and the violent confrontation with moment one is that they decided to enter and that was unconstitutional and the other is that they went in without giving any notice and if you look at that through making a presumption there that i think you have to address which is yes they entered without a warrant you're assuming it's unconstitutional no one's addressed and i don't think the courted alone whether that entry had an exception for unconstitutionality was it in exigent circumstance or not you're assuming that they didn't have a legal legal motive for entry and willing to start with that assumption but let's assume that a court below could say that the entry was lawful because it was chris sewell to exigent circumstances what would happen to your argument well let me start by clarifying that the courts below did in fact dress the full panoply of exceptions to the warrant clause and so we're assuming that the entry was unlawful there were no exceptions to it in this case correct have the case they say we think i turned out to be wrong that we don't need a while but i'll ask you whether there's a greater risk of violence and one than the other and i i wanted to hear your answer why would there be a greater risk of violence in the situation where the the resident knows that it's that there are police officers and they're going to conduct a search as opposed to the situation where there's where there's a warrant there are any violent violence at the residence directs at the police officer is illegal in both situations right right it's not justified for them to attack the police as well i don't know i think you saw you know i don't i know you're a police officer but i don't think you really have an exception to the horror that we're quire and so i'm going to call the person right right and when a trespasser enters your home different sets of things forseeable happen correct then when a guest enters your home correct so it's not just an entry the question is who 's entering a trespasser a guest correct and that is the problem with this case is that when the officers pulled back the blanket there was no indication and no reason for them to know that the mendez knew that they were police officers so in that trespasser example if the homeowner has a second amendment right obviously she does to point that weapon at the trespasser and the trespasser then shoots the homeowner that's murder a reasonable policeman namely any reasonable policeman would know in the circumstances that what he was doing was unconstitutional what was he doing shooting someone why would he know it was unconstitutional well here in ordinary tort law case one the trespasser reasonably believes but wrongly believes that he's an invited guest case two he knows he's a tres ok does that make a difference to the result it absolutely does make a difference to the result because because the legal principles that apply in those circumstances are different  homeowner has a right to use force against an unlawful entrant if the entrance is known to be a police officer not because of the knocking around school but because he sees the uniform and then the rules change if the  trespasser comes in and says wait a second i'm just your neighbor and i'm looking for some you know you do use your telephone the rules would change his thinking we want policeman to protect themselves they have to of course they do but there can be circumstances where of course that's true that they have a right to protect themselves but the background circumstances are such that there is no justification for the whole ball of wax correct and that think what your argument is in respect to the warrant if not the knock and announce you can't deal with that anymore so it's the whole ball of wax which has less justification and it is clear that the action from a to z is what caused the death now would you haven't really strongly argued that so i've been hesitant to bring it up well in a sense that it's the petitioner's test button but not quite i mean with the petitioners would tell you is that you can at least give these officers knowledge of what has happened before hand and here's the four things those officers knew which i think goes to the holistic reasonable is first they knew they were entering someone's house but not subjectively objective the a the reasonable officer on the scene knew that they were going into someone's house the objective lead reasonable officer on the scene knew it was an unlawful entry the objective lee reasonable officer on the scene knew that this was the mendez's house and the objectively reasonable officer on the scene knew that the mendez's had no way of knowing that the officer was a police officer so in that circumstance it is objectively unreasonable and it is a fourth amendment violation to use force if we look at it holistically if we look at it through sort of the segmented approach of kentucky versus king then it's the unreasonable actions that got the police officer into that situation that preclude him from avoiding liability based on the fact that mr mendez moved a gun and i would agree with the comments that were made earlier that this isn't about telling police officers they can't take actions to protect themselves we know that they will the question in the end is who bears the brunt of the officers on reasonable conduct because there's no allegation here that the mendez is did anything wrong if somebody comes into your house and you move a gun you have a second amendment right to do that if your in the privacy of your own home the fourth amendment tells you that you can do anything you want as long as it's not illegal and moving a gun certainly isn't illegal so in the end what happened here was prompted by the officers not by the mendez's the only exception to that of course is the superseding cause doctrine and we believe to justice alito that if a police officer unlawfully enters your home announces him or herself shows you a badge and you pull out a gun and pointed at him or her that that officer would not be liable for shooting you because presumably that person knowing that you're a police officer if they pull a gun on you they're responsible for the consequences correct correct all right so what's the difference between that scenario and this one wire car why isn't the minister man this is i don't think there's a dispute that he was moving the gun not because he heard the police officers but he just wanted to get it out of the way that there was no intent on his part why isn't it just like the other person who points the gun at someone the difference is culpability tests that we have proposed for superseding cause allows police officers to avoid liability if they can show either that the intervening act was unforeseeable or culpability is significant and so if an officer enters someone's house whether it's illegal or not and the occupants know that the police officer is a police officer and yet they point zero weapon at the police officer are concession if you can call it that would be that that was a superseding cause and when you look at the case law all of the cases i think address the issue the same way including course the bodine decision why wasn't there because the officers violated further memory by searching the house without a warrant that was the problem with your defendant that i believe that is a correct holding i think that's a difficult position to defend well had it not been for entry there would not have been any shooting and i recognize that spot for causation and i don't mean to rely on but for causation because then we have to go to the next step which is proximate cause and that's a question of directness on the one hand versus remoteness on the other the unlawful entry the entry that's the action the entry led directly to this shooting and so the proximate cause chain is not  attenuated it is extremely direct but i think that's the correct way to argue the case and based on that then we can have a discussion as to whether or not the it was indeed proximate thank you if the court doesn't have any questions i will conclude simply by saying that this is a case quite specifically about how citizens ought to act when they are dealing with known law enforcement officers when people know that they are dealing with known law enforcement officers nobody goes anywhere near a gun for fear of being shot but mr or mrs mendez never had that opportunity because the petitioners here decided to enter their home without warning without a warrant or consent and in violation of poorly established fourth amendment law we ask that the damages award be upheld  thank you mr chief justice let me start with justice kagan is question does a warrantless opening of a door create a different risk from a opening of a door having called a in received approval in advance the answer is no and it goes directly to one of the last things mr feldman was saying and officer in broad daylight one pm in the afternoon yes your honor middle of the day he's drenched in sunlight now he does not know that mr mendez will not recognize him as a police officer that goes to mr feldman's point about cope ability uniform so one should expect to understand that he is an officer but but let's just go broaden that to justice briar's question about looking at all of this holistically first this court has said put yourselves in the shoes of these deputies which is what one nine hundred eighty three says in this and graham says we're supposed to do you're not looking to hurt anyone you're doing your job which is to apprehend someone you believe to be armed and dangerous you look at a shock you believe there's no way on god's earth that anyone would live in that shack a conclusion that a judge later concludes was unreasonable but credits that that was a firmly held belief by these deputies you move a curtain back in broad daylight but in the darkness you see the silhouette of a gun pointed at you and it's only a foot away from your face you think it's odell the armed and dangerous person who you think who you think is hiding in this shack you reasonably think this is where i'm going to die and you have only a second to decide what to do any rule that says that you can't fire in that circumstance is an untenable rule whether you look at it from the perspective of proximate cause of going forward or you look at it from the perspective of the provocation doctrine moving backwards when this court talks about the totality of the circumstances yes an officer should be absorbing the totality of the circumstances but only with a view when you're talking about the seizure only with a view toward understanding does the risk on facing here in now that's the question he has to answer in that split second in the risk that he is facing here and now has nothing to do with whether he committed a mistake earlier on love life and the lives of the people he's protecting do not matter any last just because there was a mistake on route to the confrontation if there are no further questions we respectfully request that the court