please the court good morning your honor my name is courtney kramer and i represent the city of portland and william haas the appellant's in this case here the fellow the chief issue before this court is whether it was clearly established on august thirtieth twenty thirteen force under the circumstances he was confronted with what would be excessive and deny and summary judgment the district court relied on three cases one of which is unpublished to satisfy the clearly established prong contrary to legal precedent including that that is exactly what the hastings court decided that allen in seventy a stood for and that is not the situation that was before what these three cases are distinguishable for even more reasons including the reason of the officers presence these officers knew that he had walked away from a hospital the night before that's fairly significant and that generally implies mental illness or or something along that line it's not it's significant i think sin and i think we have a district court that he had walked away from a hospital the night before ect and as the summary judgment briefing establishes the individual officer who is named in this case did not hear that information but regardless he didn't hear the radio traffic on his way to the correct he does not report that he did get also this officer that actually shot didn't this officer get the reports that the that the wife said he was acting crazy use that term crazy and that she was afraid of him and that he was walking around with a bat on the driveway correct or again these are all sort of indications of a of a mental illness situation when they get there they talk to the wife of the child they don't ask much do they they don't get much information and there were a few of his friends that tried to offer information and there was a the allegation is that they were told to shut the f up when they tried to come by the officers with information and then the officers just simply began their approach i mean these are all the facts and they may be controverted but the district court found them against you and so i think there's a lot more here than just you know this isn't  report of a domestic violence incident or purport of a violent individual there's a lot of signs here and when they get there they see this gentleman on the driveway shouting at no one in particular waving a bat at no one in particular again i'm not sure you can really distinguish those cases well your honor respect from cases where there's a report that they might be suicidal there is a great distinction because if they're if they're happy if there can be a distinction  much of a difference i was one of the facts that was in the briefing the officer has believe that once he learns that there was a female in a male which often indicates that what the district court learns or determined was known dr prust at the time that he was responding to a high priority alert which is more than simply a welfare check is was found in the three cases relied on by the district court high priority indicates that there is more of an emergency situation the potential for a crime this suspect was drunk and possibly on drugs which can include a facts this is what we must deal with here there was a high price the report was a high priority disturbance involving a party armed with one or more bats describing it as a d j in princes drunk and want yes you have high priority disturbance but you don't have any reports of violence well threatening a person with a vat or the fact that the reporting party in this case was calling for assistance with that individual is very don't what i'm confused now i thought that there was no the fact that she'd been threatened with a knife a few months earlier wasn't wasn't relevant because he didn't know it your hon in in the district court finding he found that the reporting party had called for police assistance out of concern for her safety but what's important is what the officer knew right and the officer knew that the individual had was drunk the court said the officers had to go to trial but it wasn't clear stablish that that they were acting constitutionally into america it's even worse because this defendant had no long distance method of entering these officers what the distinction is is not just what the officers knew over radio traffic it's what their observations were at the time and the suspect response when officers arrived in all three of those cases the individuals were  agitated until officers affirmatively did something they also for the most part were complying with commands just not in complete compliance here as soon as the bios saw the officers he made eye contact with them refused to comply with me to me and to drop the weapon or to stop proceeding forward and instead he affirmatively defied that and went into the garage outside of the officer site that also indicated that he understood what was going on and was being defiant then instantly continued as he came out of the garage office didn't know what was going on in the garage he had maybe gotten another weapon that perhaps was not immediately visible but he still had the baton and when he was given again lawful commands to drop the baton st still defiant so your honor and there's no case law that says an officer can't take action and less somebody runs you or unless someone lunges at you that would require an officer to intially every single case sit back and wait to see what happens that's the whole point of requiring clearly established law to provide officers notice with what is or is not and the hate to support for typically limits the notice to dealing with individuals who are known to be suicidal who are not known to be had any any invasion of criminal activity which is a big distinction in this case who did not refuse to comply with commands and who was there asking for help in terms of dealing with their suicidal tendencies and those are very big distinctions that you don't have to disagree with the district court's orders because they are in there and i think another distinction is that in the during oral argument the district court sickly said th particular officer did not know why that individual was acting in that way there are a lot of reasons why individuals could act out or why individuals might be acting in an agitated manner but this the court below specifically said there that because the final individual can be just as aggressive as a monstrous little individual or is it more of a holistic approach i mean it's what they see and what they observe and here again that's why i'm bothered by the fact that they know according to the district court that he's a walk away from a hospital the night before that that there's no specific report of violence and that when they get there he's walking around yelling to no one in his own driveway waving a bat at no one these are information which is what the district court said here they had opportunities to speak to both why and to get more information from these friends and instead according to the facts the friends are told f off and the officers immediately approach with guns drawn and that's what the district court was focusing on here was the manner in which they approached this individual with very little information that would indicate what avail to really establish law that says officers in every single case have to get more in individual who which you know just you know the person and the court decided that she you're on a mad refinish you think you the court decided that she acted appropriately in preventing the escape of an individual because she could have been excluded into the public at any moment an officer has to evaluate the fact that somebody could be in the general vicinity or that that individual could also be armed with a pocket knife something that's not visible and it which is why they're trying to contain a situation and  based on the conduct that's why he had to act but what make sure you don't consarn constitutionalist these whether the officers under our case law whether their actions precipitated the use of force and that seems to be controversy don't have to look as to what whether the officer's actions constituted a violated a constitutional right whether it was reckless or of new to look at the three cases the district court relied on and based on the district court factual findings established there are too many distinctions in order to constitute clearly established law particularly under white calling reasonable officer knows what the circuit said in hastings allen said he clearly established that aggressively confronting an armed and so the sidell a potentially emotionally disturbed individual was not a mean yet that anyone is unreasonable right so i don't know how judge made sure anybody could find that to be a clearly establishes anything because all the panel did was dismissed the feel because be a violation that the officer was unreasonable in both using deadly force and his own reckless creation of circumstances in aggressively confronting a disturbed individual and doing affirming that saying that that you could that it the speed is in the court in his car he's got it right hand holding a revolver or a gun on the console and he suicidal is not making any movements and the  that put both the weapon didn't was very call and in very prudent and then there was another count that he came up screaming at this suicidal man who was it's clearly established that he unreasonably created the need for the use of force not whether or not he could have done something different just as an alan he recklessly created the need for these a testified they knew it's about the personal crisis not acting normal agitated acting crazy on substances just not right that he knew that it mental state possibly prevented him from engaging inappropriate and normal behavior and they may not be in a bizarre manner suggesting intoxication or mental illness and acts and he also found as you said a walk away and added two friends are trying to calm him down and this is circumstances that go to the reckless creation of danger you know when you're comparing these worse because it didn't and i don't think any of these cases are exactly like ours but at least allen v must go to go he might be actually more extreme and still dangerous than a baseball bat confronted with a guy at close range just a few feet away which is clearly more dangerous than a guy in an open driveway where you can easily escape and yet in that case not have responded the way that the officer did so in our case is not on point is clearly different but it's different in a opp or shiori way with less force and less threat and so the officer is less author less justified in our case and there so i find the case relevant not because it is comparable but because it is not comparable but only in an up or shiori way but i do have one big problem with that one which i need to have you explain alan focuses on one factor which i think has largely been discredited which is that the officers helped provoke the crisis in fact he stings did the same thing and stories are very early seventy or rather did the same thing the risk in the first place that could be a separate constitutional violation that we don't consider when we look at the excessive force excessive force looks just at the event at the moment it happens and was excessive or not at the moment it happened if the officer caused that risk that could be a separate cause of action but it does not inform the the constitutional analysis at the moment of the conflict isn't that right and if precise moment but also whether their actions were reckless or deliberate context so we've reaffirmed that principle post the questioning and then then i didn't think you didn't cite menace in your brief incitement i think it's still it's still our case law and i just want to let you look at the hour in court when they allowed a deliberately indifferent training claim against the city to proceed it was a broader category of people it was this it was common for officers to have to deal with the mentally suicidal the question is whether or not you're dealing with unpredictable individuals in a compromise in a known compromised emotional state who are likely to to not act normal and act rational or possibly produce provoke a