honor i'm going to bird i'm an assistant city attorney for the city of period arizona i'm here with my colleague michael war and we're representing the appellant officer amber in this matter officer brit so you have your colleague at yes and y intend to reserve two minutes for a while your make you obviously brewer is here today challenging the denial of his qualified immunity under the clearly established law prong and there were three cases from the supreme court's last term that my lo appeal it when you last when the district court you know if if we don't construe this the way that you're asking us to construe it then it seems that you blew the appeal period well at the time of the district court judge's decision your honor the case law of the ninth circuit was the priest appreciation case law and at that time while we did disagree with certain points of the district court's ruling there the case law was such that we really felt that her ruling would probably be appealed would be affirmed on appeal on the circuit so we did not appeal at some time of us today that you didn't have since it was way outside the will fifty nine time limits but the other side didn't object might have been a rule sixty motion but it really doesn't matter just a quarter you said well even if you were right back then now we've got a new would reconsider correct your honor sir isn't the only issue in front of us whether there was sufficient new law to require her to reconsider we don't go back and look at the underlying judgement because you blew the time for appealing that right you wouldn't look at the underlying summary judgment per se your honor that's correct so that stands the only question for us on this appeal is whether or not the two supreme court cases you cited are sufficient changes in the intervening changes in the law so as to require the judge to reconsider i don't think that's the only question for the quel to tell me what other ones in my case i think that is one of the initial question don't tell me what i want to follow us and if the court resumes if the court reaches the conclusion that in fact they were then you have to look a motions you agree i mean i don't think motions must be filed within twenty eight days of that's what see the isis time extending motion time extending motions that are filed outside that time period don't extend the time for appeal the district court may have jurisdiction to address them because of this i can waive waive the time limits but so so that all that's in front of us the only issue we have to decide today is whether or not these two cases were changes  your motion for reconsideration she denied it because she found that these two cases were not changes in the intervening yes that was right and is of her role and ok if we think that she was correct that these were not changes in the intervening law there are no one of the issues that we need to address in my correct if you find that she was correct because then you wouldn't take right now ok look at it i think we've been having now we're on the same wavelength so so tell us why these two cases were such dramatic changes in the intervening law that they judge me to which should have said well maybe well i was right before but i'm not writing any longer they were significant shifts in the qualified immunity analysis law and in particularly the clearly established law prague wrong for two reasons first the supreme court is continuing to sort of narrow the law that you can look at to determine clearly established law and you have to look at what law can even constitute presidential authority to create clearly established law and in the second area that is continues to narrow this analysis is the level of factual specificity sharp language reversing the ninth circuit said it said is guys are dealing with far high to level generality get down and look at the specific details and see within those details match clearly established law i can find half a dozen cases where this court was slapped sort of under face by the supreme court saying no no look at the facts specifically not in a level of generality was not new with regard to the specificity issue you're right honor that they've used similar language or some of the identical language in prior cases but then you have to look at the substance of what their decision is for example in the sheehan case this court the circuit court in the she had cases actually did have some fairly factually analogous cases it was looking at trying to determine if there was clearly established law in that case that would have put the officers on notice and she hinted therefore deny the right to qualified immunity which is the ninth circuit indeed found the supreme court took another look at that and said they keep moving the line and this was another error they moved the line they're narrowing it and they're tapering it and they said no even in that case you are looking at similar issues with going into arrests mentally health individuals very similar cases but those still weren't similar enough to the fact that she had to put those officers on notice to defeat their entitlement to qualified immunity so that's let me ask you this though this is a little bit judge her with said we have jurisdiction on your motion to reconsider and you said if you find you have jurisdiction we believe you have to well i know but you do have to convince us of that because there is and the other circuits have not found jurisdiction on motions to consider i mean obviously when an officer loses unqualified immunity it's clear that you get to appeal  there isn't clarity on that the motion to consider a qualified immunity rolling is falls under the collateral doctrine order correct if you still have a case going on downstairs right we do we have a stay in that and  just her court so and the other circuits that have reached this issue have said no we don't have jurisdiction to real emotions to reconsider well this court has previously do we have a published opinion where we said that motions to reconsider that in iowa qualified immunity we have jurisdiction i would have to look back to see if i had a published decision on it your honor i know i've seen  said you were the one that said if you find you have jurisdiction so you know there's the question of whether we have jurisdiction i know the ninth circuit has taken review of both rule fifty nine rulings orders on rule fifty nine arm and the one issue would be that obviously there's there's normally a higher a different standard view versus like the original summary judgment ruling reject the denotes interview now would be an abuse of discretion standard ever you that's one difference but they have taken review of the orders on those motions reiterate so long standing principles with perhaps greater vehemence that it has in the past and you say well now i get out of not filing my notice of appeal on time and i'm not sure i see anything st knew in these two cases i mean and when you describe them it's just the court refining refining its language i don't know if the supreme court has really had many decisions where they've had started than those other cases that you've cited but in the qualified immunity context the supreme court's issues have tended to be a gradual shift but i do but as it really told us to two allies case is any different it is well for in two ways in this case turning to the district court's decision in this case first of all with regard to what law she was looking at she took in a very broad view which was again the ninth circuit a view at that time that she could look at one case from this court she could look at unpublished decisions from other courts as you just referenced yourself your honor and she relied on just one decision from the ninth circuit when there were actually other dog by cases from the ninth circuit at the time she focused in on one case and i inserted foods that maybe that was wrong but why would one of the become more wrong so much more wrong after these two new cases this point the supreme court seems to be indicating in the last few decisions that it might one supreme court authority to create clearly establish law i think it's the most is left hanging out there whether you might possibly be able to have clearly established law with a robust consensus of circuit court a story but that's it and that has not been the practice ninth circuit including up through the time of the district court summary judgment decision in this case you want to favor the rest you have two minutes left for right that'll certainly  i'm going to be making all the argument yes ok and i don't hear my accent and there are other words that i can say it so if you don't understand please let me know but it's exactly exactly what you're on as i've mentioning it's kind of trying to bootstrap something that was lost  they lost the time for appeal they didn't appeal to qualified immunity then these two cases came along she actually entail or that have nothing to do with this case that don't establish a shift in law they at th the judge clearly pointed to may have confirmed or explain but there is no substantially shift in law there's no overruling of the law and they try to say that there's creates this such a substantial change in the law that they could now can meet and talk about it but the at the end of the day what they're trying to do is they have this court decide the merits of the underlying qualified immunity can you trust george callahan's question  do we have jurisdiction over the most over the appeal from the motion for reconsideration we don't think so you know why not because the time for the appeal is passed now with the time state a final notice of appeal within thirty days of the motion free the judge callahan asked is do we have do we have jurisdiction to review judge or meet it was denial of the motion for reconsideration and some other circuits have said no that's not an appeal honor i think we had i think we've said yes but i'm not positive to judge having its questions so i will i am asking you to address that i thought that we cited the specific cases that they said that the time for that appeal that passed well  certainly the time for the another so timely this issue here with respect to the motion for reconsideration the notice of appeal was filed within i can look at the record but we all agree it was filed within the rule for a time after the motion f could not revive it by the motion for reconsideration so your position is that even if the supreme court come down after the summary judgment ruling with a dog by case on all fours oh yes you have to  within our appellate jurisdiction to consider we mix we say the judge was perfectly appropriate in denying it you're telling us we can't even look at right not on this case you know because of the circumstances because was not timely than was not i understand what you're saying be heard i think in december it's going to be december january january i'm sorry in banks or in january this year under the merits of the case if we were never to get to them i guess my i have a strong inclination to think that we ought to wait to see how the case came down and see what it said and that's what you're free to argue the merits if you want but we're focusing on jurisdiction because i think to me the question is whether we have to look at the merits of this and i agree with that that you there's a collateral order doctrine apply here so that does give us jurisdiction we don't believe it does your honor we don't but we don't believe in those because you know the fundamental basis for the motion for reconsideration was that there was a shift in law and that shift in law never occurred so did motion for reconsideration itself was baseless  we don't have additional questions thank you so much all right thank you