and we will proceed with the next appeal sharon powell versus patrick snuck bruce even failed is here for the power and jason way my are is here for the apple i want to cut to the chase regarding this power of legal argument right up front and granting summary judgment the trial court was wrong on two critical points above all both of which go to the crux of ms powell claims and was one of the facts of this case case stating that an officer must identify himself and give a warning before using deadly force when fault when a threat by when faced with a threat by an armed suspect no an obvious case with no dependence on car law is required and so this is justice and so are you saying that it is so obvious even on the back here where the case you see granting qualified immunity but that's rare for the up for the officer in the field then where is the line drawn between raising the gun and charging and pointing the gun how far up his torso should the gun have to get before the officer gets qualified immunity if he had no prior warning of what was getting ready to happen if he's confronted with an emergency situation right up front and there's no ample opportunity as to give a warning before he does raise the guy and then he's gotta give them a warning he had they had seventeen seconds where he was not husband in a project he's walking he's standing straight up he's got the gun in his hand but it's pointing straight down at the ground at that point miss powers not running he was not crouched over he never had you know what that time we're talking about council is nonsense that's us and i say wake county council i'm sorry let's take this step at a time he has nine seconds why couldn't a reasonable also have believed since he wasn't pointing the gun wasn't raising the gun facing in the also direction it's a safer thing to do would be to let him come out and see what happened and see if he went back in our see sorry we don't do this from the perspective of the person who was shot we do it from the perspective of the officer and wanted no reasonable also have fault or at least debated and sell our nine garner it was a nonviolent criminal state and the also said the purpose i shot him was to prevent his escape an armed young man even though that the suspect had a gun pointed at his head he also suspected of being maybe you know a little off too but the bottom line is they say that the tennessee the governor announced the principle that if frame and i think the nine nd sinister and feel disgust is actually too long frankly the question is how does the officer have to react when the gun starts coming up and deposition she said it was just a few seconds from the garage to the point where he stopped and then when he stops and the gun starts coming out that is like a nd or less that's her deposition testimony so that's what we have on the summary judgment stage my question is and so i'm trying to figure out it seems like a jury given the circumstances a jury could find here that there was an ample opportunity to give fair warning if the officer saw mr powell for nine seconds with a gun before he started raising raised the guy and that a factual issue that is that that should be left up to the jury well before the gun starts coming out before the gun starts threatening the officer he has never reason to say i will sh so i think we're talking about police tactics at least so far as your question has been sir he doesn't he doesn't see mr powell with a gun in his hand aside i don't know when specifically he sees the gang it's probably right when he sees mr powell come around the corner from the garage with mrs powell behind him in her pajamas and there was and there's nine seconds that expire i mean it seems like based on the record that we have right now if nine seconds i mean it's ten seconds of the tears it is a long time when you're dealing with a situation like that if they if based on this record a jury could determine that officer smith saw mr powell with a gun it aside and his wife in her pajamas behind him there was an ample opportunity to say put that gun down or i'll shoot  respectfully disagree your honor and i have a couple of points toward that one is if mr pallas simply walking with the gun down and he hasn't started pointing the gun there's no reason for an officer to say i will shoot you put down the gun and center there's just no reason to do that in fact the court would probably say if mr powell just had the gun down and he wasn't starting point at the officer you may not be able to shoot him so that kind of warning is is i guess my question is i guess guess my question is should we leave that up to the jury well i disagree for qualified immunity purposes and this is my nd point because officers in this circuit have been granted qualified immunity in circumstances where there's plenty of time to warn way more time to warn and they don't do it the warning rule basically there's never eason here there's no time here not enough time at least under circuit precedent to have to give the warning so that qualified immunity would be denied we have officers where you have a right you're right we have that case law and in those cases the armed suspect was a danger to the officer but i guess my question is why couldn't  reasonable jury decide that based on these facts the armed suspect was not a danger to the officer before the officer shot him three times trying to and trying to make sure i understand there was a pall is in his own home his wife is behind him in her pajamas in his house and so i guess my question is why couldn't a reasonable jury decide that the nine seconds before he started raising the gun as he was walking out of his garage why couldn't the reasonable jury decide that there was sufficient time the officer to give a warning before he shot him and my response and i hope i'm not repeating myself but it's that before he starts pointing a gun there is no reason to give him a warning that i will shoot you furthermore he's a uniformed police officer with a gun standing there and any reasonable person would know that if i pointed gun at a police officer he's got a gun he's going to shoot probably so there is warning there are cases where officers don't say anything but their uniformed police officer with a gun pointing at the person saying stop or something along those lines or not even saying stop in the person is on fair warning that officer is going to shoot if they keep doing the aggressive action or they make some kind of aggressive action toward the officer furthermore there are cases where the potential of the carcase where officers are hiding in the  bushes the person who shot doesn't even see the officer doesn't see uniformed isn't given any warning but the officer can defend himself when they believe they're in imminent danger of harm and so that's the rule that really controls this case there's a recent come to qualified immunity the question is well is there a case that tells the officer that what he's doing what he did violate a clearly established law answer is no in fact the case is good the other way the back and the hamilton case is extremely close to this case in the court says there isn't a th amendment violation much less you know they don't even get to the qualified immunity question of clearly established law so you know when we talk about qualified immunity the case law absolutely told sergeant snug that his conduct is appropriate here and i have other prepared remarks but if the court has any other questions i would i would love to answer that well i hear no questions mr way myra thank you for your argument yes sir ok and mr that was done and everybody has no counsel let me ask you this your put your position then is that when a law enforcement officer sees an armed person he has to give a warning no as opposed to when he thinks he's justified in using force if the person doesn't drop the got no no contention and zines or stand it by the defendant that he could have shot the man who had the gun in his hand that was pointing towards the ground position is that he was authorized to use deadly force only when the person started raising the man started raising the gun  to waist level hip level in his direction so your position has to be that when you see a man with a gun you've got to give a warning then you you can't withhold a  is it and you go back and forth between obvious clarity and similar decision but to the extent there year you're doing obvious clarity yourself or even similar decisions you're saying that is soon as the also see the person who has a gun he must then give him a warning that he'll shoot him if he doesn't drop it even though he doesn't intend to shoot him if he doesn't drop it and he obviously clear rules is so if you say a person come out of a house with a gun on their belt in a holster and you're a law enforcement also you've got to give a warning because