is speed limit as he was permitted to do under an emergency call we do not know the top speed that he reached the co three call was council but mccann he was still directed by his a period all st officer to continue moving to the laws location and other words immediate attention to the issue that was facing officer and began to reduce his speed at the time of the accident mckinney was still proceeding to the lawless location as directed by his supervisor he was still responding to the call the yelling with officer loss in other words at the time of the accident mckinney was still on this call he was still going to lawless because of further communication that from the communication was from llamas why and what did he say i don't have the specific quote in front of me you were there with the details but he said basically we have i have this i have the person to that location now so i told you that with all due respect that really was canceled an officer mckinney acknowledged that i know of three is the emergency and then it and it was it was canceled but he was told by his supervisor to continue into a war lost because whatever circumstances were there he was still told by his supervisor who heard what law is said to continue term required to slow down and become in compliance with the law he turned off his lights and plane and continued to proceed in that direction but he did not slow down fast enough and in this act how much time did he have well that's that's in dispute that's a fact question in is in forty to forty one seconds based upon the evidence that the plane just presented in trial a call at the time it happened the qualified munity standard still applies this case just because he's on a call he's on call all the time on that point that is correct oh that is my point exactly enjoy it in his oral specifically said i will reference his comments are important this started off as an emergency call them urgency was counsel justice breyer and then however he was still directed to sufficiently to comply with the law at the time of the accident no question about that but those facts are significant as far as the is standard the intent to harm standard and also as to the application of qualified immunity where there is no stablished or law clearly established law lol beyond debate decision was two thousand and eighteen they found that the law was not clearly established that the that the officer would have believed they weren't therefore the officer in that case was entirely qualify unity and they went so far as to say now in from now on your own notice right so line is sawyer route were the court enough appropriately so require a detail over analysis of what the status of the law was at the time that it is not beyond debate in this circuit it hasn't been decided that analysis has not been done and if you're inclined to go in that direction is f as this specific conduct and determined that intent to harm is a standard in this specific content of a set of facts then it is incumbent that this officer be granted qualified immunity and then everybody's all notice and this circuit going forward otherwise until that is a step wish you've got a situation where every this conduct and the intent to harm can apply going forward but not in this case this was a nineteen of two thousand and sixteen  years before sol judge came in his own order said this is not clearly the stablished in essence those were his exact words but in essence and he went through and based on other unrelated necessarily unrelated cases that this should be the this is the low as of the time of this i respectfully submit it was not and if you're going to apply a standard it needs to be applied post because as of two thousand and sixteen this was anything but on clear though he found going forward that there could be a due process violation under the facts of those case that case that qualified immunity was still out with the bow to the d a s officials who correctly found that officer mckinney's actions meet that standard take him out of his face the supervisor statement even suggest that off from him he chose to speed up after he had been ordered to slow down this series of events and there are five key facts really out wreck the courts you on that before you get to that point i was interested in the chief question that your colleague did not know the answer to which was what information law la are it's not clear to me whether lalas his statement is going to mckinney but it looks like it did there is there another statement or is this the best example i got of what law  a violation of the regulations or even a violation of state law is not itself the sense of due process violation right i mean the fact that it was consistent or inconsistent or manic we he was indifferent to the law that says if you are to quote one if you said you are then you have to follow the speed limit you have to if you're going to be in an emergency situation you gotta have your whites and siren on that is both his policy of the partment policy and stat night rounding a corner on a roll route what else do we know and other key factor is that we know that there was no emergency that he was going to there there was no urgency but he was going to because he had been told by wallace specifically to turnt that to mean is i need to back down to a code by which means not emergency response follow the speed limits and he didn't do it other important factors here is the amount of time that he had to deliver right the cabin for contemporaneously capture computer data documenting the events that night show a span of time two minutes and fifteen seconds which mean the cancellation of the codes for a and the absent or the collision itself plenty of time there to deliberate and to reform his conduct to what he said he knew would debate are needed it's a baby under under the law and under the policy at the time also when it comes to arbitrariness there is this idea that you do it one pleasure and this i think we're really does need to take special note of acknowledges he should be code one that he was following the speed limit but then we know at the time of the collision that he was going eighty three miles per hour and so the necessary implication from that series of facts is he back down to forty five but then knowing he had a duty to follow the law he had been ramped it back up to eighty three and that's when we really get to this idea of not just the liver and difference but arbitrariness that we are shocking the conscience because there is no legal on that factual conclusion but we get the benefit of that inference for the purposes of summary just and that is actually the case that he was going eighty three after he had gotten forty five and after he knew he should not be exceeding forty then i think really the the land of the obvious case here judges i mean we're in a situation where do you really need a case on point to sell it officer but you can't do that i mean what i tell me why i don't think emergency call of an officer i mean you know some guy roll through a stop sign versus an officer requesting assistance i mean if i'm supposed to be in the job of sort of weighing those like the officer requesting assistance seems more urgent to me than the guy that rolled through the stop sign i'm not sure i would be making that judgment but in the abstract i would agree with you if not for the fact that we've got laws on the on the radio saying i don't need an emergency response anymore but then but but come to have time to deliberate but if you do have time to deliberate on the i have to show is deliberate and correct according to the supreme court right and i think for the purposes of summary judgment we've got evidence to show he had time to deliberate  n that he had this two minutes of time period decide how he was going to react the circumstances and given what we know he knew when he was acting that was plenty of time to reform its conduct or make this and consistent with the obligations he had under the law louis non police reason so a non law enforcement reason he was going home this is why right like if he was running drugs sure if you intentional misuse in the browser context i get your quote but i don't think you read that quote without reading the case that it's a non law enforcement reason not and because it did sort of distinguish it goes down distinguishes the other cases where they're the chip what you call chase cases on the grounds that those who are responding to law enforcement reason suggested not temp can because of lewis what about tim can is inconsistent with lewis and i don't i read that too as being consistent and i may be wrong here but it's seems to not be inconsistent with and so yes you may be a distinguished ten can just like your colleague can distinguish brouwer right ok that's fine but if everybody can distinguish everything convincingly what that a government purpose and arbitrary conduct but what do you also says is or no we're close to that a lot we are nowhere close to this line i love you but we are actually all on a worse case here than the facts of browder because in broward he didn't have a i'm in so that think i think even takes this case beyond the facts of the hour and so i think again just because you say ok fine we they could potentially you could say maybe ten thousand girls or does not apply here you still have to make room for the for the and of course it sure we don't have a case on that one but i mean come on i mean what but the difference there is that there was not contrary case law other circuit i mean that even accepting that right i mean one thing it seems to me that you have a problem with is the th or th circuit you know sort of we talk about in plain error cases for example that an error is not plain when there's a division of authority it's right it seems to me that at a bare minimum addresses the same situation that we're dealing with here and so we are going to think about what to qualify our unit really is designed to do at its core it's designed to protect against bad guesses and barrier and i would ask were just asked a few questions one was it's a gray area that you shouldn't violate your contemporaneous order from your boss telling you to go to code one which you acknowledge what you said i should say and two is that a bad gets or does that go to a higher level to deliver indifference and my profit proposition your honor is that it goes  y process for oil and temp can actually says that and in a procedural due process case the deprivation isn't a violation unless there is an absence of due process and in those instances those limited instances then it becomes understand your argument on the parenthood thumb argument i don't see you responding to the tempting argument it seems to me that temp can does reject us argument  or you may not and you may just be preserving it or not and that is a very responsible and respectable answer is to say yes this is precluded by current th circuit law but i'm preserving it because either i think beyond backcourt or the on is whether you believe in light of the temp can be frederick county and the discussion and i would say rejection of the parent doctrine to the subs and due process claim raised there that that is a binding decision of the th circuit this panel whatever our views about this doctrine has the lacks the power to do anything about well i don't i don't read it quite as rigidly as you do book so i would have to disagree you have two reasons one you're preserving it for supreme court review and two you think that there is a problem under para hudson right yes right now and we should resolve that and circuit precedent doesn't do away with that loftus who's the guy on the street says you could drop down i don't actually see the supervisor order him to go to code one i agree mckinney acknowledges it he says that's what he's but but now he said the supervisor to this was part of your argument that he was still it was the prelude to the argument that he was still to continue on to the accident but he was to go down to code one but judge's order below does say the supervisor cancelled the code three this is have to do with the they were courting that of conversations going back and forth and it seems to be conversation it stops and starts and we get for someone else i don't know you know maybe that's inherent maybe that's the way people talk like i talk but it's a little  what you're saying or so that point and then that at least appears and i'm not trying to cut you off but that at least appears to be the disregards interpretation of the cat report greg had the thing that goes back and you know you talked about he was driving at a high rate of speed even though you recognize as the the cases that even though the circumstances you say is not right with the court did not carolina tour plans that i referenced we referenced eight cases in our grief dealing with what we thought were analogous cases three of which are post moves one with a lady case that was a non emergency call the officer was go in thirty five to forty miles per hour over a posted speed zone without his lights inside on and of course a good eastern district pennsylvania said th the facts that we that are in this record and i don't believe that the law all is well established to apply those facts and create  if you want bill that passed then that's up to young but at least under the facts in this case as a stamp that the judge kane had before him and it made it in his or in effect that the