reduced to two questions the first and i'll deal with the somewhat differently than i did in the brief is simply if this were a civil case on this record would mr lewis be immune from civil liability for an eighth amendment violation of harry long rights which is allegedly based on a shooting of mr long by mr lewis during a prison disturbance if the answer to that t it is what we have is this statement and we can puzzle it through the united states supreme court has said that you have the same action in criminal cases based on fair warning a public official does that that public official enjoys under the good faith immunity doctrine in civil cases and it uses the word same protection so we're that we have that language and we say well what does that mean do this in a criminal case from the standpoint that it would seem that in a summary judgment obviously the parties you know present their papers and the court reviews all of that and make the determination on that in this contest it would seem to me for the court to decide what you want the court to decide it would have to hear all of the evidence and then decide the issue well and why wouldn't it be the same that if it's a fair warning that you hear of the jury hears all the evidence that the instructions are such that he would be entitled as a defense and then either at the end of their government's case thank you they're having you know they of reality that we can import to this by saying that this court bank has struggled with this very issue and issued an extremely lately opinion on the same issues it is not presidential because it was they're relevant that's right exactly right it's not authority but but if it came up in the context of the mirror image of this the state prosecutes a federal officer as opposed to the federal government's prosecutor state officer and what the court grappled with was the issue of the immunity claim of the federal officer several from the claim of guilt or innocence because guilt or innocence we all agree goes to the jury and the fact is that the constitutional issue of good faith community is not a malicious state of mind i'm going to shoot that person because he's black or i'm going to shoot that person knowing that they're doing nothing wrong but they're in a situation which will allow me to shoot them and i know they're not the real wrong to i'm going to protect lives that you never reach the question of malice you never reach the question of malice that malice of course to convict lewis not a criminal trial the jury would have to find beyond a reasonable doubt that he has malice and that will always be an issue for decide under that with a reasonable person interpret it in their jurisprudence would have fair warning that their conduct violates the eighth amendment only a court can do that well that's that's it you may be true that you may be right that the the in bank case just take a look at just because they're asking in his lead opinion makes a pretty persuasive argument of why it should be decided by the judge that he didn't bring along seven out of eleven both the concurring opinion and the dissenters saying no it should be a voted not to remanded but to find a federal officer immune as a matter of law on the facts before them but the point that i was making in response to judge callahan's question is this is that there is no one in that case one in that case took the position that the issue of immunity and the issue of immunity federal munity admittedly there under the so obviously clause can't be raised and decided in a criminal case pretrial and the fact is this is a rule twelve issue in fact very long time the judge had to do a lot of fact i mean about the nature of the evidence trial evidence to determine whether the source of it was independent from across the board by allusion so that you might not have a kind of a different issue i don't think it would be impossible to have such a hearing we probably already too many times now trying to figure out the parallels with our civil side but it seems to me that fair warning and immunity from stew in the civil side are not one hundred percent parallel and that there is an element of animists and malice in the two forty two context that you don't have and basically now under the civil and unity side so my question is if there are they really parallel in your view and would you agree that section two forty two has a different designed by the supreme court to protect public officials so i am not saying that they're warning is completely extensive on wall weigh in always with the faith community but i am saying that if the good faith community claim is on the criminal side deals with a public official put it this way if the fair warning claim deals with a public official who's claiming good faith immunity then the two or equivalent ok so let me just say though if what you're really saying is if we have an eighth amendment type marquez in which this court has said when you have a market situation you absolutely have a right to an interlock authority on the civil side all of the policies there all of the policies apply equally to similar civil and criminal cases because the policy is not to have a defense policy is to be immune from trial and that and the reason if there is such a thing as good faith community in a criminal case you have to have an interlocutory appeal because we all agree as as was being debated in the prior case that the issue is does the does the protection go away if you wait till the end of trial and if the protection is immunity rather than a defense the only way it can be protected is through an  of just reading between the lines here would seem that what really doomed your client were the statements that he made after the shooting in terms of stance that made it seem that  back then there was the evidence that came out later that she couldn't have seen who the people were there were that there were comments made about that the guy deserved it because of a stat his particular status as a prisoner that there isn't it's not clear on the record whether  she even knew who the person before he shot him so are you know what you're saying is obviously that's kind of a it's sort of a bombshell per a jury because the things that he had  seen were reflected pretty negatively on him but if he didn't really know them at the time that he shot the person then i guess it was her first initially because the shooting review board said that he shot with and that was a warning shot there was fighting all of those things seem to be undisputed take the plaintiff's view of this this guy might have looked down and said oh that fellow down there is not a troublemaker and i'm going to shoot him in the leg anyway and it's said we can't resolve that question because that goes to whether there's really an eighth amendment violation but we have held that a shot fired from this distance when there's a present disturbance going on we've got to let reasonable officers make those judgments it's a reasonable situation and that is indistinguishable here because one thing about this case i mentioned fell out and the other conceded fact is that the shooting review board found this to be an object of reasonable shooting we don't need a trial it's just ingenuous of the government gets up and says we don't know what the facts are this case has been tried once already the caster if you look at your excerpt of record you will find each of the things that i just said conceded in the government's trial great or in their in error before this court so this is decision in markets markets will control the definition of the name of violation given in the criminal case because we use the court's eighth amendment jurisprudence why is louis being put on trial if we know that that  cannot be found guilty under the good faith or fair or fair when in darkness and the reason is and i say this with with great respect for the trial judge the trial judge did not correctly understand this court decision in marcus she stated it was a strange case and that's in the in the our yard page eighty seven and then she say stated what mark has is about that the ninth circuit found that there was no evidence that the guard himself knew that this problem might not be a trouble maker and mark has says we have to accept the plaintiff seven unspent maybe the guy didn't know he wasn't a trouble maker what we're deciding is the immunity question whether an object of office or not this one whatever his mental state may have been could have believed that his conduct was constitutional we find that it was and the district court felt that immunity my name is eric and i represent the united states in this manner to start out i want to take up judgment question about whether the fair warning doctrine and the qualified immunity doctrine are parallel they are not parallel there is no qualified immunity doctrine in the criminal context and the linear case although it draws a connection between the two doctrines of fundamental flaw with the defendant with lewis's argument in this case two doctrines have always been applied differently in their respective contexts it's a fair warning doctrine has always applied to all defendants not just public officials it has not been the subject of interlocutory appeals and it has been applied is a very short opinion that doesn't go into a lot of details first lost in the civil context so you have the summary judgment type procedures which allow the court there to even reach factual findings and we don't have that here we don't have a record of facts here  that the that the district court could have relied on in reaching factual conclusions in terms of the merits but more importantly than that i think this vision in jeffords is very enlightening in terms of do you get around all that but but i mean obviously when you when you move away from that you're not alleging as a conspiracy how do you get away from all the undisputed facts here i mean i think the argument that he's making that's exactly why there should be qualified immunity  prosecutors be able to decide that well i think that there are i think there's some other reason that he had in his mind well just tell him there are actually two reasons one there is no i'm just a few to the factual record in this case on the there was a prior trial but the government is not bound by that and in terms of the cast of our hearing that goes to the source of the evidence the government has not in any way been required to disclose its theory for the for the inmate or the government to allege that just pure allegations that there was an improper motive however if there is evidence to support that as there will be in this case when the government has a chance to present the evidence at trial then subjective intent is relevant in a way this that is the question of our jurisdiction because we we have jurisdiction to review qualified immunity cases in civil cases then we get them up here and then we sort through things like chess where is and sometimes we remember them and say go to trial we can't decide in advance i guess my question is a more fundamental both policy and consistency question we have in a couple of cases permitted review you know like a tory review for example in double jeopardy because in effect it's an immunity from similar to  exceptions in the criminal context why wouldn't we simply extend that parallel to the case of public employees under two forty two well first of all immunity is really a where it's been decided separately in the criminal context are things like supremacy clause immunity or the examples that you gave a judgment to where the issues are separate from the merits and actually i wanted to bring the courts or are you saying that the because of second element that the merits and the fair warning are so intertwined you can't separate them here that's right and under criminal under the criminal rule twelve b two it makes it very clear that if they are intertwined and that it's not to be decided by a pretrial motion and that would be subject interlocutory review and the d c circuit has actually addressed this very question in a case called coulter which i conviction review is deemed adequate to vindicate that right and it has a helpful site to another d c circuit decision that seems like it cuts the congressman with everyone else in that category i mean he not going to guard tower and doing the job that correctional officer is really very different than what everyone else does i mean this is like truly a unique situation and because a lot of the reason that a lot of these immunity is kind of that we could never get people to do these jobs you have to say we're always going to be able to be for people like said that the adherence to the rule against iraq a tory appeals has been particularly stringent in criminal prosecutions because the delays in disruptions attendant upon intermediate appeal are especially inimical so the effective  go back on the you know it seems in some respects that it would be decided here based on this intertwining argument and as i heard mr lewis this argument he says they're not really intertwined that you've got really a separation here you say they are intertwined would you elaborate on that so i can understand your argument well the classic example of an issue that's not intertwined would be the supremacy immunity adds an extra element to the normal civil inquiry it adds the element of making sure that the law was clearly established so that you're not punishing someone who wouldn't have realized that their but in this case for example it's not because the disputed issue of intent is central to determining whether it's a constitutional violation so even if you assumed that all of these arguments were right that lewis was making he still wouldn't but i thought i guessed even if you asked him all the facts that you could prove if that still didn't make it a crime he's basically saying that he should be entitled to not have to go to trial for that  is clearly established in the law prior to this conduct that you cannot shoot a prisoner with just because he's a child molester just because you are too many if there not some other legitimate justification for it and in this case the government's argument is that there was no legitimate justification this was a pretext and he did it too long because he believed him to be a child molester that is clearly illegal and there's no argument there is there's no reasonable argument that it isn't no that's that's what makes it an issue that couldn't be determined on qualified immunity even in the civil context what makes it intertwined is just the fact that you cannot determine whether there is qualified immunity in the first place without  first deciding if there's a constitutional violation and if you added that there is or isn't a constitutional violation you've already gone to the merits of either the one thousand nine hundred three or the two forty two claim that's what makes some intertwined so it's r counsel makes a motion to the court are you saying the court can't say well they're just there's no crime here that would be the proper procedure for lewis to follow here that's been the proper procedure that's always been followed in fair warning cases this tiger challenge the indictment itself or when the evidence is all in to say you know in light of the evidence that's here what was done was not a crime and he would be able to make that but that would be after all the evidence comes in and then the judge would be in a position to actually make the determination that the evidence didn't rise to the level of being a criminal offense leave aside that you think that there is a special issue here violation why shouldn't we decide that before putting a public official trial well that's i mean it all goes back there in other words maybe if i just accept your view in this case it doesn't work then we'd of course have to figure that out but first we have to have jurisdiction to do that so i'm saying let's let's take a case where you can't make that argument just because the facts don't permit you to even make the argument is that something that should come up to us on crime when they're doing your job i mean we're not talking about opening this up to all the senate seats are not your usual defendants i mean these are people think that that guns that work you know that have certain policies that they could i mean they are public officials that that have authority that the general person does not it's not you know it's not just a mistake if he shot this person because you were a child molester out on the street i mean that's a different situation than someone that's up in the gun tower and there's a fight in the yard right too but to apply the qualified immunity doctrine in the criminal context would be an unprecedented extension of that doctor and to a brand new context and the fair warning doctrine that's always existed in the that were we to go with his client's view it would apply in the case of public officials because of the parallel with civil immunity he wasn't suggesting i think that it would need to be written in a way that it will cry to all  when fair warning issues have come up in various circuits different courts have handled it differently some some courts have made some legal determined to terminations ahead of time but that usually goes into either when it's what kind of evidence can you put in or it is put into the jury instructions in terms of instructing the jury that this is the law on it as it's clearly established and that sort of think so various motions can be made in  legal questions can be resolved by the judge and those can be expressed in jury instructions so in that what's the government's position in this case that it would go to the jury with instructions to make this determination made jury determination and we have to go all of the issues we go to the jury with your instructions in this case that's right because there's nothing in that lewis has conceded there's nothing fatally wrong with the indictment there could be a case where the indictment would be legally insufficient that the indictment went could be legally insufficient as in it didn't really when it charged wasn't really a crime and then you would have a fair warning problem but then you could have a motion to dismiss the indictment very quickly i think with the last twenty minutes of demonstrated is the government has a hobson's choice there's an intellectually coherent position which is that good faith community has nothing to do with criminal cases nothing nothing the defendant can argue to the judge the jury nobody the problem with that is the united states supreme court has said he would you had the same protection for public officials same protection as a quote from civil liability that they do from criminal liability so they've got to acknowledge that the doct problem that they have is that they really don't want this issue in a case at all they want this to be a case go in there if the shooting was malicious that's the only thing left to the jury that's the end of it it's got nothing this qualified immunity business which is a reasonable standard has nothing to do with the criminal case but then they're running straight into the problem of when you're saying that the same protection exists on the criminal context as the civil context under under these  doctrines thank you thank you presented us with a difficult case no doubt but thank you both for your arguments and the cases have submitted