decision to deny a qualified immunity from my client as to the plaintiff's excessive force client so that is the legal posture of the purpose of the appeal i submit that the issue before this core is was it reasonable for david balut to feel threatened by julian bed and when he went into his home and julie in bed and drew a firearm on him in response that is the gun in response he said you got it down by his hip that's correct when not when i say draw i mean we have a dispute of facts is my point and it seems to me that you're trying to characterize who designed this community to me this case is just if peers to be riddled with factual disputes when i say draw i mean taking it from the back of my waistband to presenting it to having it by his hip i don't u to dispute a fact here you all have to be on the same page as to the box yes or absolutely no disagreement that we adopt those lot like cooper doesn't it no ma'am it is not so in cooper the man walks out on the porch he's in mere possession of the firearm he says who's there he thinks you know there's someone crawling around walking around his house and then the officers approach him from the porch the cooper decision is that mere possession of the firearm is not enough to trigger a use of lethal force i'm thing that comes in and cooper right after that is the assumption that a man who greets law enforcement with a firearm is likely to pose a deadly threat rests on the fact that the man reasonably those the police are in fact the police  well and then he goes to they lied or made false representations every single one of them said they knocked and then by themselves billy's right and it's no longer contested that none of that's true about that i'm not going to admit you know facts wrong you have to you have to take them i thought that our case our case law is that the we must accept the facts as the district court nothing that happened before that them breaking in this house unannounced not been done by this police none of that counted as a hoover but it did down here yes or no will it has to be part of the that seems to me that what you're doing is you're saying we don't rely on the fact of an unlawful entry that's correct i agree with you because the force circuit has looked at the time that the use of force was employed and supposed of servants but that doesn't mean that the facts are irrelevant that this man who saw these armed invaders and he was nothing from the record but a nickel and dime drug dealers not a few grams of marijuana you wouldn't think that that all of these armed commandos were coming into your house you had no idea they were police you've got to beat that pos to be which i believe this is where the core is focusing is not part of the analysis in a use of force calls of action it is from the perspective of the officer so yes sir and i point the court to l a county versus mendez the nice circuit raised arguments very similar to what this court is saying where you have this crowfoot cation the use of force  them and if it's not unreasonable then why is it reasonable for the police officers to choose twenty two dimes or whatever or not now how is this case of a bad guess in a great area under our law i know this is just a it doesn't even seem to be a gas i mean they just came into on load on sky that and cheating twenty some time not matter i'm sorry to interrupt but because it doesn't not matter that was just a marijuana charge and they decided to go there where the door was unlocked and knock it down with a battering ram and run in with no indication is that not matter of all the tact the tactics used to you know the swat like tactics that cause of action was dismissed fall or if that effects where the core is referring to was when i was going i had made my point have front of us whether it was clearly established that a group of police officers are with weapons and battering rams can enter a home without identifying themselves as police and shoot and man who is holding a gun it is head isn't that what this case is about if that is the lawful entry calls of action no no no can shoot a person after having done it in other words entered his home without a dentist find themselves forget the unlawful entry cause of action but can do that but how is this a great area for the police to shoot somebody twenty some times and even if we were to give you the st shot how do they have a right to unload twenty some shots that this man did to me i mean i'm sure you've looked at that video yes one of the swarm of officers going into the place if you know even if you par we haven't gotten past the entry that the lawful entry calls a faction is the focus in this argument and i want to actually know as you know it isn't just question is did the police have a right to unload their weapons into somebody in his private home when he is standing there with a gun at his hit not pointed at the officers not firing at the officers do they have a right to unload their weaponry into this person he's drawn his directly quote the mr battens testimony i just said ok so you have the hints leak case which is why what we're describing here it occurred after this right but where the gun is held down the drawing  secret compartment were i might have such a thing far away i want our answer that question in the reverse is the officer supposed to be shot because the entry thank you very much agents converged on mr battens hall five of those agents running up to his front door none of them not none of them announced themselves as officers instead defendant david blue how the open the screen door while another agent ran up with a battering ram and smashed out of the front door mr bellew and two other agents that rushed into mr bennett's home with their semiautomatic rifles raised mr benton was walking out of his bathroom when he in smashed out he did not know that the man who entered law enforcement they did not identify themselves upon entry they gave no warnings or commands they were not wearing uniforms instead they wore  s a mix of face masks backwards baseball caps shortly sure's long sleeved shirts jeans khakis startled by the break in mr bad and reach for a gun in his back waistband and pulled it in terms of the police officers fear for their lives and i think there is a distinction if if mr bennett had pulled it out and raised it toward the officers now i will emphasize that and all sure i was right to defend itself disobeyed an officer's command and then reached for an apparent weapon before being shot and of course disobeying the command to a no an officer is crucial because someone as as this court s someone who greets law enforcement with a weapon i quote officers can presume that they are likely to be a threat where however as in cooper as in this case where the  home resident has no way of knowing that he is confronting law enforcement his quote perfectly reasonable rationale for burying a gun should have been apparent the officers or any commands given here no you  individual who sort of was outside and kneels down you know he submitted a statement that the officers never identified themselves at any point so taking the record i thought that there is no evidence of commands or warnings  or anything before they started shooting your degree was made of a person believes he or she is being is meeting and trooper unlawful intruder in their home that the police cannot reasonably assume that the importance of the right to bear arms fifty in defense of one's home so you're saying that cooper isn't enough then to establish or to satisfy the clearly speak here as in cooper the agents here were investigating a nonviolent offense as in cooper the agents had intruded on bents private property without identifying themselves as officers who were it was lived in a  as in cooper mr benton had no way of knowing the intruders were law enforcement officers as in cooper mr ben was holding a gun by his side when he was shot as in cooper mr bender not raise the gun pointed at anyone as in cowper the officers did not give any commands or issue any warnings and as in cooper mr benn did not make any threats or disobey any commands and so given that like i think you were prepared for that question much on so cooper is on all fours and provides the requisite level of specificity to provide a clearly established law for qualified immunity analysis and you know that the supreme court you know has has issued decision about qualified immunity it has said you know there does not need to be a case directly on point well there does not need to be but in this case there is and cooper is directly on point and were there any doubt about the constitutionality of these sorts of actions they were eliminated in two thousand and thirteen when cooper was decided  three were several questions about the relevance of what happened in the moments before mr batten was shot and those facts are clearly relevant because they show that mr ben had no way of knowing that these were officers and that's why these facts that the facts about how the officers approached and fail to announce are plainly relevant in coober no case law that you just cut off everything that occurred you know before one you know more than one second before the shots are fired no one no authority for that whatsoever the mendez case the supreme court case that counsel referred to in no way supports that proposition the supreme court there just said the fact that there was unconstitutional entry does not in of itself make a reasonable use of force a reasonable that is certainly not what we are arguing here although there was an awful entry in that if she was not here on appeal we're not saying that unlawful entry is what makes this and reasonable this is unreasonable on the fast just as they are warrants or if they were improper uniforms but they didn't do any of those things and so yes and all those things are relevant all those things are relevant because when it when officers have completely failed to report a home resident on any sort of notice that these are law enforcement officers and they have broken into his home they cannot presume that he is a deadly threat merely  yeah i mean i think that i mean yeah i think it's i it's hard to say if everything were the same but he did in fact point his weapon at them you know that is that different case that we don't have to confront here  just what one of the inference is that can be made by a jury you know mr bad english shot it twenty nine dollars times he was hit nine times and he fell backwards and fell into the hallway i think and if you're going to get any mr infer that mr ben did not stay standing through after being hit all nine times that he thought at some point and it's reasonable to infer that he was shot at some point when he was lying on the ground or shot that given the fact that there were bullet holes close to the ground the wall you can see them there is there is a picture in the in the record and pull the site but it is the from the slug report has a picture which shows bullet holes and they have the kind of like tape marking tape where you see the bullet holes that are close close to the floor on the wall close to the floor where he had fallen could mr benton recover if the jury were to conclude that officer action that this is unlike and you know the other case on life trooper and i think that mr ascension of the record and misreading of cooper you know the action here took over you know took two or three seconds which is very similar to what happened in cooper that the officers were coming up towards the porch door that one of the officers stumbled over concrete and he looks up and the door opens and he reacts and fires me and you know the flames testimony as he was that he was shot within seconds of emerging from his door so cooper it is likewise the case that involved you know a decision that involved seconds and this case is no different so just a short time frame in and of itself core so like you judges i and i'm fresh to this case and had to read all of this material and one of the things that struck me when i was reading all of this material is that it was this thick when in reality what we're talking about here is that cheating itself and what has happened today is what i thought might happen when reading all of this is that we would be led down the path of let's look at failure to train let's look at lack of supervision let's look at the entrance and all of those kind of things when what we're trying to get the court to focus on is whether ballou was reasonable when he decided to fire the shot and i understand what the court is saying is that well it's all sort of part and parcel it was illegal entry proximate cause of the ultimate shooting and that very well could be true but when we go to trial we will have the city there we will have the opportunity or everybody will to be discussing whether the  in let's get the chronology correct design your stand it simple lute was the rd person and then i will say that and because of my knowledge of law enforcement he would have been committed whether even if he even realized at the time that they had not properly not because at that point he had a job to go in and make sure that the people who used to rein them were in there st he had to do to protect them but what i asked was that he was rd person in so and  trying to write the facts in the way most favorable to you through this proceeding maybe what the basic misunderstanding here is a simple anatomy because if i may your a case more outrageous some facts and i would have to disagree with your honor's interpretation and that because i remember i am your only for officer bellew do remember that there were a lot of other officers involved in this to stay so you won't did he tell a falsehood yes actually in his initial statement he didn't say anything about whether there was a knock or not but i will tell you guys during their goes to gauge it at some point yes he did tell slade that there's depositions but when he's got a gun in the man's head it was in the way between him and the the door he certainly was moving their mouth and i could see anybody saying police nobody was announcing and so you know i