he's number eighteen five zero four seven eight five one one zero joel nasal road versus dennis mayberry at all argument not to exceed fifteen minutes for play into and fifteen minutes to be sure heard of by defendants mr wells you may perceive may please court counsel with the court's permission i'd like to reserve three minutes of my time for rebuttal is said my name is trevor wells i'm here home behalf of joel needs a road appreciate the opportunity to argue for the reversal of the summary judgment perceive it to peek requests reply brief or spray whatever we call that articulates an argument that's a little different from the one he articulates below in that the argument below was no citation to frank's it wasn't a contention about false or recklessly untrue statements in regard to the affidavit for the search warrant but rather refer to the poisonous tree and a contention that the affidavit should have included information about the location of where certain events took place for that reason the record as developed only remained focused on the good faith of the afternoon lieutenant or detective ham as i interpret the argument being made in that means the x rule was applicable no matter what i would acknowledge it i guess the tricky thing here is that at least in this circuit that wouldn't be enough to create a in original deliberately lied or testified in reckless disregard of the truth when the affiant has bad information that doesn't create a different situation the allegation in there is no six circuit authority i'm sorry out a little bit just to make sure i'm getting everything you're saying so there's an excessive force component to this case there's a fourth amendment component to this case critter so i take it there's not a heck problem with the excessive force is not a problem the excessive force there's not a problem with the malicious prosecution claim it's only relates to the unlawful entry playmobil if you're wrong so how does that work help me out a little bit since you're starting here this is what i was expecting but that's fine it's your call with the fourth amendment claim so you  would if you win under one thousand nine hundred three it would imply that you should not have been convicted that's the typical problem right that it would necessarily impugn state court criminal judgment but you can't bring fourth amendment claims  vs powell so how does that work so that's just trying to figure it out i mean theoretically we would have had to bring it in the state court criminal proceeding not only not of the post conviction but prevail in that level and if we had done the the united states versus leoni issue means that even though even if we had brought that issue the evidence would have been found to be admissible the judge and the what the district court in this case determined on remand is therefore therefore does not impugn the underlying stake or criminal judgment you want to talk about exit in circumstances  small number of plants they arrive you've got these glass windows the minute they arrive either by happenstance or because he's going to destroy them he exits out the back i mean that's i don't know that that seems like a reasonable fear that he's going to go destroy them but the case law suggests that in order for that exigent circumstance to be applicable they have to be able to show that it is probable that imminent destruction of evidence of the house when they arrived innocently and option b was an innocent wrong he was going back there to destroy the planes but in order to in order to prove that option b is probable and to access that aspect circling back to the malicious prosecution issue this one is really only an issue because of the unique procedural posture presented by the disposition of the previous appeal  decided sort of in the interim of the appeal and now providing false information is sufficient to meet the perp cheering element of bush's prosecution under kentucky state law now if this court has a head  affirmed the summary judgment two years ago either initially or after the defendants asked the court to do so on rehearing then i'd likely be talking about a different issue now but they didn't the whole ball of wax went back on a reversal nothing was affirmed by the prior i would like to discuss the excessive force claim i think this is the disposition of the issue boils down to essentially to how one defines the clearly established inquiry supreme court has been real clear on the fact that we can't do this at a high level of generality there's also case law that makes it clear that you can't do it too narrowly in the granular level in the ultimate reason it exists is fair warning our contention is that brandon bird versus cureton sets appropriate goalposts between high level of generality and granular detail deadly force is a permissible didn't someone who doesn't have a firearm pointed at you now immune represent that is not what he said i would i think that's correct but i'm as i stand here right now i care i think that is the case that seems to me that's the way we look at it so low ready like this and if you're the officer you only wait till it gets to hear i mean there you can't do anything until it gets to your minute seems really risky and brandenburg the gun was in the guy's hand the guy had fired warning shots in the air the guy had threatened to kill the officers and the this court at i don't know the decision says where was going but it was an order that the officers at low ready i don't believe it was lho ready argument we don't have a low ready case why isn't that a clearly established problem but i think maybe he wants to define the standard more favorably in her name this is not a bear just bare bones anonymous tip that she gave her name she gave her location she gave a general direction of where the where the plants were or being cultivated and also described that i believe she said that there were three plants that were being cultivated with that information mr craig kraft gathered together his  is called a desi unit which is the drug enforcement special investigations unit it's is a harvard kentucky state police and local police officers they took a uniformed police officer with him to  there is some there is some dispute as to we're mr craig craft was if you read mr rhodes mother's testimony she says that only officer gurley was at that the uniform officer was at the miscreate crafted already gone around to the side of the house and was in it was at the mouth of what's called a breezeway which is a which is understand it was off of the off of the driveway and to is there is no case judge reeves found this found this case to be an exit circumstances case i think he was absolutely correct the prior decision in this case when so you have the tip of the three marijuana plants and what is it is that a glass door at the front i mean is a glass toward the front if you take it in a light most favorable to the plaintiff which we have to do miss bangor put put to take to curry craft over to the know i would lose on that if i did because this is a summary just dismissal but if you take that in the in the in the it has to be judged from what the object will reasonable officer on the scene would conclude he can draw certain certain conclusions using his natural senses but what would it what is it that made it exigent i mean they know three marijuana plants in there that can be easily destroyed but what's the other fact that he had his head in the direction being that he's heading in the direction that the marijuana plants could only be grown on his property and that was toward spangler property in the back of the spangler property joint he's heading in that direction and what the only thing that detect curtilage i would suggest that it is not clearly established that what he did in doing that it wasn't clearly established in two thousand october two thousand and thirteen that what he did in effect in approach now those have been called into question very recently and i submitted on for on monday when i was preparing for this argument apologize about that but found two cases that this court had just recently decided in and one in september of a court case called morgan versus fair fairfield county in another case called brennan that is cited in october of fifteen it basically said that  did that he didn't have the right to step into the carpets to do i thought the way this worked was going up the front walk even for knocking talk is in the court of it's but the reason we allow it is you've got a path and you don't have do not enter signs and you have a doorbell which suggest people can use the doorbell but once you get beyond that i thought you were in trouble no i don't think so your honor if you if you look at it look at the case a case or precedent that put to ted to craig craft on notice that what he was doing was objective and reasonable in a ring the curtilage in going round and trying to  contact another person in the back yard by saying hey buddy and what he was greeted with when he when he said hey buddy was german turning and pointing at twenty five automatic getting in might want to stay at the front door well i would agree that that that a judge justice scalia's the girl scouts and and all that know how to go to the front door of a house but then a year later in carmen for carol versus carmen there's a city the supreme court came down with decision that there's no clearly established law that a knock and talk has to start at the front door doesn't have to start front or you can go to another door this is a breezeway this is a breeze way leads off of the these people's driveway there was no gate there was no do not enter there's nothing that says question there would be not clearly established is are you limited is that is that what is that what it says if you have an answer there you can't engage anyone else in the in around the house during a knock and talk i don't think that's been answered and that's that's that's why the clearly established prong of pearson versus callahan is such a good is it is a very critical piece of this the mali not change but one element of the list is prosecution of the kentucky law judge rees found that he that the playfield lacking in three elements probable cause  it basically says when when a party makes a strategic decision about not pursuing certain peels in then they may get another remained back that they don't get a second by the apple they're stuck with the with consequences of what please the court mr wells my name is charles cole and i represent dennis mayberry who is a trooper soon his individual capacity as to mr maybe he arrived in this backyard he was standing next to a fire pit he was exposed and he sees craig craft that's mr steele's client taking cover below what he also sees is mr nasal road with a pistol that has been drawn from a holster holster is important because the plaintiff in this case place significant in places that holster was it was inside and it was hoster he's seeing someone not with a rifle but with a pistol drone and he was heard drop it drop it in his further testimony as he's turning backwards and forth with this pistol going from craig craft to mayberry he strode drop it drop it drop it state police then he is shot it's important to know where he is shot he shot in the chest indicated that he was turning towards mayberry those are the facts of dennis mayberry's participation in this case as far as giving a warning he did say state police but you've got to take this from an officer in a reasonable officers position in the case law of a reasonable officer in this position detective dennis mayberry was not at the front door he believed this was a marijuana poor going to pour marijuana he was back at his truck putting on his mug boots in his vest when this whole thing took place according to our recent set you gotta admit this is not the fin for police the three marijuana plants and for you know people shooting at each other you know are pretty ridiculous you are again he believed that he was going to a marijuana pool and what he is know that that is where we get into the segmenting position that has now been clarified by this court in the supreme court and that is looking at the when the use of force was made so regardless of whether this intrude on the property b craig craft was constitutional the u s got to be segmented from the use of force itself which i've just described of that low ready pistol going back and forth in addition if you get into that then he breeze back there and he's looking at them in the front door a reasonable officer and we've cited the case law can assume that they've already taken the steps he can infer that they've already taken the steps to identify themselves in the police or gnome so when he goes into the backyard not only does he stay state police prior to shooting but he has as from his position can believe that the person back there already knows that the police are on the property there's a march cruiser he seeing a marked cruiser at the front door an officer at the front door all these things before he ever even leaves the reason he leaves is because he hears the word gun said the word gun said mr naser road when he's in the  backyard can't refute that mr mrs nasal road testified she told the state police heard the word gun said and there's no evidence in the record that says i did not say that that was not developed in the records so there's what we have so we're back again to mr mayberry looking at him as an ex exposed position in the backyard facing some no one lot of the case it's relied upon the plaintiff involved rifles this is not a rifle this  a gun that has already been drawn from a holster lot of the other cases that are cited by plaintiff are whether or not it was pulled up or whether it was down well this was obviously pulled up because we know it was out of the holster so that part has been satisfied what's attempting to be done here is a bright line test of pointing or not pointing a gun and so the plaintiffs has put together several cases and said here's the clearly established law that unless there's testimony i pointed this which he does say the word point mr nasal road does a few times in his testimony but unless you say i directly pointed to then it you can never have qualified immunity or a justified use of force that is not the clearly establish law you cannot piece together in my opinion respectfully for five cases and say here's the law and so i'm saying this is now the test that is not the test these type things are judged on the facts and the circumstances that existed at the time and i have described for you as to my client those facts when he decided to use force based upon the threat the serious threat not only to himself because he's exposed but also the threat to create craft who has seen that trip threat and then retreated my client is standing at the firepit there's a picture not only in the record but in the brief of where he is standing there's no bulletproof vest he's standing there with a person with a pistol drawn and he's already said i went to pull it so maybe behind me and i went to pull it and then he's turning back and forth and so these are the facts  which summary judgment should be affirmed in my client's favor as to no constitutional violation or as the district court hild on the alternative of qualified immunity with regard to did he create crass argument that it was not clearly established that his actions didn't fall within the naacp and talk exception to the warm requirement this conduct happened seven months after florida v and that's a march twenty third team case this was this activity happened in october of two thousand and thirteen and as judge white observed this isn't a case that falls on within this q this confusion spawn by hardesty in turkey it's not a situation where they're looking for an alternate door so that doesn't involve the situation this is an attempt to shoehorn a terry stop in someone's backyard into the knock and talk exception and no law enforcement officer could reasonably believe that the limited and consensual knock and talk exception permits a nonconsensual intrusion other than at the doorstep in effect they're telling you that the girl scout can't just ring the doorbell but can chase you in the backyard and try t posture at all this claim went back to the trial court there's no way to read the prior opinion in this case other than that the only other comments i would make are with regard to the argument on followed by his first recollection of any mention of police and then he was shot before he had time to react also the argument that the principle upon which we are premising our claim that the use of force was unconstitutional when clearly established it doesn't depend on the difference between a long gun and a rifle and attempting to draw that distinction is an attempt to draw it in a manner that the granular level