so there has to be some kind of accounting at least under the case law as it exists now for the fact that mr powell is a felon or suspected of a felony based upon the history of controlled drug buys that were done over the four months prior to the defining it from the standpoint because drawing your gun can it's really hard to say when it would be permissible and when it wouldn't be permissible like say for example if if the evidence were such that a person hadn't committed a felony and they were playing perhaps you can't shoot that person ok that would there would be a defined right there but here if it's a defined right that you can't obviously if they're serving a search warrant he's a cover officer and at the time at least he has some information about mr powell prior to that and she asked to move so she's on a bad wearing large panties and some top or something so it appears she couldn't secrete a weapon on her body but the area around her had not been searched so he's still a cover agent in the cover agents are supposed to keep the searching agents while they're going through safe and it seems undisputed there third little minor disputes but she put something in her mouth and then she goes to the window so what what what is you know is is that is the right that you have a right to be free from an accidental discharge is that what is that what what is the constitutional right to the right begins with the analysis of the fourth amendment well tell me what the right is you've been living with this case but the district court to find the right in a certain way right now and let's assume that's too broad what is the right tell me what the right  and she makes the movement towards the window and he then with the gun in his hand attempts to restrain so the question is that and then read that in and reasonable use of force for the first part of that qualified immunity yes yes yes that's the question and i think the court's asking me to accent the size ok let's get to the second question about how are we going to find the right well we have a so we you know the first question is if you take all the the analysis of the chord set forth as the grammar o'connor the three factors were trying to figure out what's the government interest we've got to balance that with the amount of force that actually is put into play and in this case the district court was in not and now analyzing the graham vith o'connor factors correctly and in fairness to the district court he didn't have the benefit judge rice didn't have the benefit of the decision that followed the two thousand offense at all so the first factor weighs against the defendants but if you take a look at gonzales where the officers approach a vehicle not a person but a vehicle that was known to be used in traffic in narcotics before that's the first one and then there's the other to went out towards the end the area the room that hasn't been searched yes that the point i'm trying to make within solace is the court didn't require those officers when deciding that first factor of the severe crime was and that didn't require the officers know what it was the driver was putting towards his mouth they saw him putting something towards his mouth and that gave them reasonable suspicion that he was trying to destroy evidence that's the same situation here and that's why judge rice got the first element or the first because the officers obviously have a right to be concerned for their safety and here in this case mrs palin moved from her position on the bed towards a part of the room that's never been searched she says i was going to the window to spit it out she also says she never told the during that time there's officer brian aussie he's engaged with the suspect shannon taylor on the floor in the room in the same room famer in the same room over four people in the room at the time yes or and so when mr powell turns from her position on the bed and heads to a direction that hasn't been searched sergeant flint house the literal split second to decide what am i going to do and he does what any reasonable officer would do when put in that situation a situation created by  don't think it's in the record if he said stop stop or if she contests that he said stop the problem because of the close proximity of the room that the court's already describing is that the time he stands there and says stop stop she's already accidental that sergeant would be entitled to qualified immunity is there any evidence in the record that a person could conclude that it was other than accidental i mean i think she said that that i mean what's the other evidence no ma'am there is came from his gun it's not an admission that he intentionally shot her nobody who heard those statements took them to mean that he intentionally shot her because she's trying to get away what we do well  disputed if the court takes a look at the record sixty four for that statement of facts you'll see where miss pal tries to explain away how what she first claim chance it went anywhere besides his head no it was on his head then she finds out in our motion and our initial motions that he's not even wearing a head holster he's wearing a chest full swing a second one no sir he was wearing holster that's what he was wearing was wearing something under the best i don't believe he was wearing a second look at him look at the record if i were not taking evidence here yes i understand your honor i don't recall that being in the record i recall one right and then the second whether it's clearly established i still don't know what you're claiming to be the constitution i'm assuming but you haven't told me to shut that you're saying he didn't violate a clearly established right but i don't know what that right as and then even if but then that even being said there was no clearly established right but what i think you're telling me you went on broad crohn's but i still don't know what that first element with the first with the right is i am serious bodily harm it doesn't take into account any of the factual circumstances confronted by the i'm saying if you've had this case a long time what's the right and what i tried to identify earlier as the factual circumstances that have to be taking account to a situation where he's confronted with with a lethal confrontation well but i think that there was there was evidence in there that all the circumstances of when you help me holster when you can have it depend on all the surrounding facts so all the surrounding facts i get mean even the imprint says to your client what a period he's the cover officer he does have his gun drawn and the whole house has not yet been searched and there's movement putting a pail in and movement towards the window so what casey says that under that sort of quick action that you can grab someone and try to stop them from destroying evidence or getting out the window  application of deadly force you look at whether or not that force was derived from reasonable conduct you don't get to go twenty twenty twenty twenty here or everyone would agree that wasn't a good idea right then because something happened so you don't get to country any twenty it's what at that time what case at that time said he can't have a gun drawn and grab someone to stop them from destroying evidence and going out the window right your honor i don't there isn't a case that said that specifically so when that doesn't doesn't that isn't that should the officer have read to have taught him that he would have to hold to the gun before he went after well i think the officer would have knowing based on the case law that you have to account for an unreasonable mistake and you have to account for a reason ordinarily if it's if it's an accidental shooting council an accidental shooting by a federal officer and you would have you would have a negligence claim for negligent conduct and you would have a tort claim against united states which is waived sovereign immunity don't you have that such a claim in washington we find remarkable here is the situation how this occurred i mean sergeant slam had the training that doing this clearly can result in deadly force but you could also say that you could also have the training that you got to the  knew that his conduct could result in that had been for some people then what says she got a gun right there and shot the officer then we wouldn't be having this conversation right so i mean that could happen i mean we don't get to we know that officer if that was a cover officer at that point just go to grab her and then there was negligence because that size training your honor in this training is to be to act in the correct way when confronted in those type of quick put i mean it was just it was a movement out the window and so i was the officer from her i think that he would have been at the foot of the better enough to senate he did you ever take a couple of steps in order to reach are right because if i were my recollection of the of the facts is that he was acting as a cover officer for both one of the one of the contact officers in this house bedroom and also one outside of her bedroom so he was kind of standing in restraint while the officer was holding the service weapon that's the right we would ask the court to define we think that right has enough touch tone to the factual context confronting sergeant slant as compared to the way the right was did the fine by the district court below because the district court's right the definition of it in the cases the court cited cover a spectrum of police conduct from putting the spikes out to shooting at her balls into a crowd with regard to what case makes it clear there is no ca case the only case that bears on this issue is the luna case where it was ok for the border enforcement agent to physically pursue somebody he thought was an illegal alien dealing in drugs while he still had a service weapon drawn and then with