well argued we will take our next case which is the state and rewritten versus john michael will become in front of the squad and it should be because it's the most radical departure from existing law that is imaginable we have a situation here where the trial court decided that every time a police officer comes home from work and takes his weapon disassembles it and stores it by taking it into pieces and placing it in hidden locations all over his bedroom and then that's a lock on it so that it's completely an operable and then locks it behind a dead bolted bedroom door that that is an act under color of law that can at some point expose him to liability now in this particular case the police officer in question happened to have a son who became to ranged yeah we were well familiar with the facts so let me sir and there was no finding by the district court either the district court and i haven't quite understand how the district got there said that if a gun ever becomes operable the statute doesn't apply if the gun ever could become operable through any means that it would be a jury question as to whether it was safely stored i don't really get that i mean we didn't argue we weren't doing a second amendment case but if we were all the statues that have been before the united states supreme court where they talk about operability of a firearm which had been by the way overturned as a violation of the second amendment in operable meant disassembled or locked ok you see an operable under the statute means what h well that's what the judge decided that that in operable now it could never be operated ever which means you would never have a suit for it because it wasn't operable at all and you'd never have to have a statute that protected to protect and that's the the other thing the judge judge joyner felt that a jury should always decide what's the not safety what's not security that a single death boat wasn't enough now that's not even required by anyone ok you're back  person who's making the claim to demonstrate that which is for sale or negligent yes i believe the way the statute is written the burden would be on the person claimed saying that the immunity did not apply because it says there will be cause of action you can't file one so in order to say i have a right to file one you have to be able to say i have a right to buy one because of negligence per se and then you have to go to a statute and ordinance a law that says it's going to be negligence per se in this it be negligence percent a to lock your gun up in the fashion in which this was locked well it was in accordance with police procedures more than that even more so than that police procedures procedures didn't require that you take it completely apart and hide everything in all these different places and then that you install a deadbolt on your bedroom door it's this isn't and this is not it's about where you just jimmy that you are the door i could use my foot and kick it and it would open this door had to be seared off i mean if you look at the picture in the record the store was literally broken down by someone in a rage torn off its hinges literally and for this place officer trapped within vision but i think that the gun safety statute if you're if you're looking at and the supreme court is looking more at what every reasonable police officer could've imagined could have know that would have alerted him that his conduct would have been unlawful how in the world could john michael have known that is con the district court seemed to be troubled by the foreseeability piece this now on moving back to qualifying us and was concerned that there were there was a factual issue about foreseeability was that for seeable that if your client left the police report on the table expecting his son to see it that that would that would upset him make him angry that he had a history of violence and so it was for civil that he would respond violently that in fact with the p f a in place if he had just violated that informing him of his paramour's having gone to the police and told him would in fact in a rage and he would carry out the threat he made sure that those things were foreseeability factors that a jury ought to have an opportunity to think about and opine on or make a decision on before he could make a qualified immunity decision not what's wrong with that line of reasoning by the what's wrong with that is that on the seventeenth three days before it's on michael went on his replay cation his son called him and said i'm going to turn my stop and as soon as the warrant is issued he already knew i knew she knew that andre kind of the place he knew what she had told the police in fact the only disputed issue of fact in this case that there would  in everything in here the judge joyner said is that john michael left the police report on his table with the letters to his son there is no evidence in the record of that anywhere anywhere there's the only reason that  that was not the only way the judge joyner got there was through an inference the two letters that shawn left his son on the table were taken up stairs by his son to the old bedroom he used to the police report ended up there when the district attorney c id people came and were not finding everything they found not only the two letters that's ron had written to his son but the copy of the police report there's no evidence that john ever left that down on that table in the kitchen he left the letters he said the police officer writing his letters to the son that was an act of official it was an official act to write the letters that says my son i love you turn yourself then it's not that bad i will help you i will do what i can that's official misconduct to beg your son to turn yourself then and to say it's not that bad you didn't have a weapon you didn't have a bond you didn't have anything like this so even leaving a place you put there  because maybe a jury could also in for from the fact that you turn over an official police report and i understand you said it's not in the record but he's he's needed inference that your client made it available that that's jury i don't have any facts to present ladies and gentlemen but i have an inference sure i will come she was just one inference and the inference is that you shouldn't bar that this police officer did all of these things because as a psychic he should have known how bad this would have if you've got the police report in the house in the bedroom where the son was would a jury could a jury rationally infer from the fact that it's with the stuff of the sons now that the son did not live there he lived with andrea for years before this i said when i said the bedroom that he used to have it was when he used to live at home with his father years before understood i'm just trying to the place where all your logic ok my logic is that there's no factual foundation and you focused on the letters i'm trying to get to the question i think was just joiners concern and have you respond to it he seems to be concerned not that there isn't an argument you can make but that there's an argument  made on the other side and the argument that could be made on the other side is there's a police report there it got there because the father put it there well he didn't wired it there put it where in the hands and why first of all john michael was given the place report he did not request it that's number one number two the testimony in this case had been that in cases of domestic violence they rely upon them once you had an argument earlier where it was why didn't the family were why wasn't the only contact why didn't people try in this case the the superior officers testified that they rely on the family to try to find the people because they don't know where they are when they're when they're addicted from their residence you have to go to the family to try to track them down so if the captain report for john who then took it to his own home is that official misconduct and if he left it in his home where he did not expect somebody to come in under the circumstances and do what he did is that official misconduct is that an affirmative seemed to think that there were facts here that would allow a jury to decide whether the acts of your client in bringing the gun home placing the notes on people things like what would why would a jury get to decide that on every other day from july second to july twentieth that john michael did not commit an unconstitutional act but on july twentieth twenty flew away for a couple of days he did c an unconstitutional act in doing the same thing he had done the day before and the day before and the day before that and the day before that where does that end he never would have been about it or has gone home that if what they're saying is true and they're alleging that he was this violent creature from many years before then john michael would not have been able to have a gun at all because he always would have known then that if this son would come into his house and break down the store and ransacked his room and and steal these things that he was a menace to society what made it different that day than any other day any other week month year and can any police officer after today tomorrow whenever these decisions are made can any police officer bring istana well i think not have to worry about  too that the knowledge that your son has turned by violent and frequents the house you can't ignore that that your son is under a restraining order that hasn't been the case for all years and days and weeks of his son was under an agreed upon restraining order it was not something they agreed to it it was not right tried but he then threatened to cut up his wife that's the allegation we're presuming he is guilty he said he can't say he didn't say that but yes we can presume that i suppose but that m case a little different from your saying he can never bring his gun home well no because on july second with the protection of abuse later initially on on june twenty eighth the victim writes down when she goes to the police on july second june twenty eighth  threatens me he's going to hurt me june two years ago he threw one bottle and hit me another time he slapped me and threw me on the bed she has all these violent acts that he's committed and yet when it comes down a protective order ever he's agreed with her to allow it to issue and she's allowing for free visitation for the grandson then all of a sudden the fact that he says what he told the police i'll cut you john michael should have known that his his service weapon decision what would be it would be that even if you assume that he did something wrong he never did anything that can rise to the level of shocking a conscience that i guess that would be what it would be for the deliberate and the deliberate indifference whose burden would it would whose burden was it to come forward and say that doesn't work here because it's negligence or say or there was an exam and trust judge we we've not had that opportunity because we did not obviously try to scase of a qualified immunity that was not a final order i mean the reason we're here it was a qualified immunity i always talk that the statutory munity was simply a defense as to whether it was a are you saying you didn't have any obligation in the face of that to say that you won't apply we cuz i understood but the facts that we did present were th gun was as as the joint of pointed out operable and where that was not purple once the safety lock was taken off that's sort of the point is that right well that's where i believe it gets interesting is that if if we take the  right well we believe that a jury should decide that issue because when it comes to an opera bill of the of the of the gun of the other factors that come in is exactly how was the gun need an operable and was the status in operable by device right there includes that language by device device doesn't that really anticipate that someone is using a gun lock as was done here how could a jury decide in a way t jury could find ambiguity what is ambiguous about that that that the gun was actually used indeed why is that a question for a jury at all if the question is what does that word mean in this that you isn't that exactly the kind of it was allegedly locked and the key was in the bedroom door i think in the sock under some linens on the shelf yes and the ammunition i believe was in the in the closet you know when you say it was allegedly locked there's no dispute the record is there it when the statue uses that language secure when the statute refers to because the key was somewhere in the same room absolutely i and your honor again with with if you look at the legislative history jody dorner pointed out to one legislature indicating either the gun lock was made in operable by by some sort of physical force but not using the kid that was present for them just simply unlock the gun the device has to be able to be taken off in order for the gun person committed to criminal acts before committing a well you know broke down the door of the bedroom and then held liable notwithstanding the fact that person commits to intervening criminal acts that were not known and that person is and found  you are it state created and yes your honor i do not have a case that has a specific facts however obviously as as the circuit pointed out in morrow in june of this year if you enhanced the danger if the danger is need worse access because he was on vacation for a week and he he did get a criminal complaint and the criminal complaint the not just report that mr michael r over the son was going to have  shocking to the conscience it was a deliberate indifference so what's the liberally indifferent about bringing your service revolver home like have for your whole career put a trigger lock on it hiding the key hiding the bullets dead bolting the door hiding the key to the dead ball where what in that series of events should lead a rational jury if they ever got it or a judge responded to domestic violence complaints in the past he was sent to just violated a p f a knew that his son had intimidated a witness before rising from child support also knew his son said i'm going out surrenders and if the arrest warrants out you're on  pretty rational a lot of that telephone conversation he simply had him in his son had a discussion about yeah you should have been somewhere you should have been but there was no nothing in the record indicate that the appellant advice the son that he had now the affirmative i quote from it of a question in the affirmative arcs take place in the context where there is some kind of ongoing relationship or are able to ship off an ongoing in the state official taken which in crease the danger the individual i'm struggling to see how in this case there was any any kind of relationship with the officer and and the deceased that was there was no relationship is not correct well while the officer was an enforcement official the victim was a domestic violence victim and the officer was under an obligation if or acquiring firearms but one judge like has questions what was the relationship usually it's ok to be the actor has acted affirmatively visa v the person who ultimately is harmed how what is the relationship them except in in like your honor the individual was walking on the highway the police officers didn't show up she would have still been subjected to that now now with the husband but she still would be subjected to that but it was the act of what they did to  her which put her in it more dangerous exaggeration but then saw it enhanced the danger and we believe that by providing a gun to someone who clearly doesn't care much about a p f a order who has acts of violence in the past and enforcement official and we believe the relationship though maybe not is as specific as like in a special relationship in a custodial situation there's still a relationship and these are not two ships passing in the night i mean i was a law enforcement official and that is a victim who's i won't belabor this because i think that the panel understands the arguments very well but i want you to consider just this would every reasonable officer have known that his conduct was unlawful and shocks the conscience of a court would every reasonable officer says that's what the supreme court says the standards would they have no impact and needed a marriage didn't know the captain who kept her going in the same fashion in this particular case the  the young woman who tragically died kept her gun in the same fashion in the house outside of which the niece was killed judge joyner mistakenly said that the murder happened at but it was really at the on cells where there was a gun stored in exactly the same fashion in a closet in the exact same way without the benefit of the of the outside lock on the door what kind of standard are we going to hold police officers to this decision by judge joyner was