at gunpoint in an attempt to force him to shave religious beard violates the constitution qualified immunity protects officers only when their conduct does not violate clearly established laws of what your reasonable officer would have known does not protect officers when the unlawfulness of their alleged conduct is a parent's now in determining whether a right is clearly established this court has recently noted that it considers decisions from the supreme court or the circuit and other course  the supreme court has also recently reminded us that a general constitutional rule that has already been the finds by case law may apply with obvious clarity to the specific conduct in question and this is one of those situations where the conduct was so obviously unconstitutional and granted you agree that you haven't decided this question i agree that it has not been decided yes but i think in graham is a guidance from the supreme court where it was it's been clearly established since graham that the use of force may violate his constitution if it's objective leon reasonable and that depends on the severity of the crime whether the suspect pose an immediate threat and whether he was wrist resisting arrest or attempting to flee hang on  land let's just pause there do you suggest that there was a use of force here or threat of the use of force underground the pointing of a gun out of suspects is a use of force when it's coupled with the threat that he's going to shoot graham says that it you don't need physical touching to have use of force there can be a threat was coersion can be enough and it's based on these immediate threat to anybody or that detective believed that he pose a threat to anyone he was in custody there is no evidence that he attempted to physically harm anyone and he had no weapon there's no evidence in the record that appellant was attempting to flee or resisting in any way other than verbal he was secure in handcuffs in custody of the officers at the time and this is not one of help us mr reddy did you point statements about the guard holding out the gun was it where you specify whether he pointed the gun at him or whether he was waving it around just just what i mean to be sure i'm looking at the right specific part of the record all right  a held him quote at gunpoint quote hold a gun out on me and quote threaten to shoot my black ass those are all at appendix eighteen page eighteen paragraph brief also he claims that in opposition to summary judgment he said that along with the verbal threat to shoot him  quotes quote he writes however his physical gun was pointed at point this along with his verbal threat to shoot plaintiff's black ass if i continued to refuse to shave that stock in number sixty two that's his opposition restocked sixty three is his deposition sorry this court can consider what he said in opposition to the motions to dismiss the walker the discourse said a district court deciding a motion to dismiss may consider factual allegations made by pro se party newspapers opposing the motion so the court can consider those those statements also in addition to his deposition testimony and that's helpful because the one thing i think what we'll need to do is frame what this specific factual allegation is on the part of the of mr girard and so i take it you're saying that if we look taking into consideration his pro se status we should consider the statements he made his opposition papers which include him whatever the words are basically pointing the gun at me correct yeah  and if the court considers that then the facts are in line with cases from other circuits and district courts where they found that pointing a gun at somebody and threatening to shoot them can can be excessive force in violation of the constitution whether  obvious clary's specific situations in question and that's that's the case here also i know it's presidential not a non presidential opinion but in mills this court did say that circuit law could support a claim that a gunpoint death threat constitutes excessive force under grant and there is a number of district court cases where they use grams to analyze the same type of facts that we have here is you know my concern with mills is it is actually a non presidential decision so if anybody were to read emails they would know they'd be on notice that that's not actually a binding precedent of this court right i think lawyers would know but officers who read it may not understand that so it could give notice but also those cases from other circuits that give fair believe the st rd sixty seven thousand and ten circuits have all addressed situations similar to this one and have found that there can be excessive force in the situation and a number of district courts also and also this is just obvious i think to any any officer that pointing a gun at somebody to force them to shave a beard is excessive even the district court in this case noted that detective b as a legit alleged actions were disproportionate and unreasonable  and i think that you know the jury should have gotten the opportunity to decide whether or not you know this this happens and see here the facts presented by both sides decide the issue and would you agree that  the facts the relevant facts that would need to be looked at would include the fact that i think by mr gerard telling reporting he was screaming and yelling and resisting compliance with a lawful court orders at all so part of the the factual scenario we have here yes that's definitely one of the facts that should be considered but that goes to one of the graham elements whether he was posing a threat or resisting and you know verbal a resisting is different than physically resisting  physical resistance main some situations require a gun to be called out but just cursing and verbal ie refusing to comply is not one of those situations that are inside a gun oh my dear i might see it after a result to some kind of force so that it depends on the circumstances that's all i'm saying if you just screaming and yelling and used doesn't seem to be threatening the officer that's one thing but if he does seem to be setting the officer buttons that may be another i agree and there's no evidence in the record here that the appellant's was threatening the officer physically or that the officer believes that he was being physically threatened and in fact there is no evidence at all in the record disputing the appellant's version of events not even an affidavit from the officer denying falling out the gun so i think that this is a case that should have gone to the jury to decide what happens the district court's decision for two reasons st the district court correctly held that there is a no clearly established law in the circuit that would put officers on notice that if the right with no physical contact a result injuries could amount to excessive force nd this is a case where appellants testimony which is the only evidence we have here should be disregarded as a matter of law because it is so improbable and inconsistent that no rational had credit appellant testified that a detective pulled out a weapon and threatened to shoot him inside the manhattan criminal court house complex during a court ordered line up with an eighty eight present and that a t f supposedly  dull razor blade and that he cut his face but even if a pounds and probable testimony is to stand under the qualified immunity doctrine the excessive force claim here fails because there are simply no law in the circuit that clearly establishes this conduct is unconstitutional there are no cases that speaks to conduct where there is no physical contact and where there are no injuries and certainly no cases that would provide an officer with the requisite specificity that qualified the qualified that the officer did not the facts there weren't sufficient for an excessive force violation because the plaintiff only testified that he and that the officer pulled out a weapon and it was unclear what he did but the weapon and that's exactly the scenario we have here the deposition only says that the officer pulled out the weapon and i understand that mr girard proceeded pro se and district court but actually with his opposition to the summary judgment  submitted a declaration is sworn declaration and he does not mention the words at gunpoint or those like i must point out to him there in the sworn declaration so even though he was pro se he understood the difference between sworn an unsworn papers and he only mentioned the at gunpoint language in the in the unsworn opposition rather than in the declaration so could repose there for a nd so st tommy where exactly i'm going to liberation just where is that in the record specifically which documentary and it's documentary and i'm page three of that he he wrote that the officer drew his firearm and then on page seven that he threatened to shoot him but there is no there are there's no mention that the gun was pointed at him or the words gun point are mentioned and that is a distinction that matters under mel's but even even provide with the notice that is required and and there are no there are no cases in the circuit that speaks of these circumstances and and that's important because this is a situation where an officer used words and he there's just it pointing to the gun and and the threat to shoot it your position that that's not enough want i want to clarify we're not actually talking about whether that is excessive force or that is an excessive force that's actually not the question posed here the question posed here is whether the law in the circuit is clearly established that that violates the constitution so ok well ex pats one thing make arguments about the underlying constitutionality of the actions i'm i know that but we have the we can go to waste here one as we can just decide to qualified immunity quite and that address the constitutional question or we can address the constitutional question for future cases and and go with qualified immunity or of course we can find a constitutional violation and that it was foreshadowed you know that's that there's a that's another option so i'm looking at all three of them are so so on the actual question about whether this was constitutional violation which again wasn't brief because we maintain that this is not clearly established and we don't need to reach that question here but again here because i think if a guy pointed a gun it may and said i want you to do x i would feel coerced i would feel i would feel that i had no option i would feel that it profanely not complying with a lawful court order for a repeat of time and so so these are certainly circumstances that matter and and whether the force would be excessive is a fact in terms of inquiry and we maintain that here that that was not the case but again are the only argument we're making here is that it was not clearly established and because this debate is happening here and this way that actually proves the point  this is not beyond debate as was required by supreme court precedents for watch to be clearly established it does need to be beyond debate it needs to be you no longer an open question an event even what we are to look outside the circuit which should constitutional violation so so that again informs whether the queer laws clearly established but those cases actually speaks on their site at you and our brief those speak to the fact that other courts have found there to not be an underlying constitutional violation when a gun is pointed in certain circumstances don't think it's something that should be decided for the st time in this court issues of facts that also need to be decided by the jury is whether or not the gun was pointed at his head where the gun was pointed if there was a gun pointed at him at all be psychological they don't need to be physical evidence those cases where in the cases where there were multiple injuries you know there was physical injury psychological injury and the question would be whether sort of on top of it all we cared about the psychological injury injury i don't think any of the cases you cited suggested that psychological stress alone constituted injury that may be true yes i don't i don't recall exactly the stacks of each case but the answer is that would suggest that people don't already know the answer which would be your client loses i'm qualified immunity hearing that would be true but i think that the case i mentioned before graham says you don't need court decisions or by our prayer decision as opposed to what happens in other than others that this court has said that decisions from other from other circuits and district courts can provide for shadowing on an issue the point of those cases was that sometimes a proposition is so utterly obvious that it maybe just never occurred to you it never happened to come up in our circuit but you can look at all the other circuits they've all held the same thing which is sort of evidence of just how patently obvious the point is and if you know by the luck of the draw they're just didn't happen to ever be a case in the nd circuit or you know we were the th circuit to look at something that doesn't make it any less obvious  but it seems that we just come back to the same essential point where it has to be so obvious that any police officer or in this case correctional officer would absolutely be on notice that what ask what your beard looked like i suppose i guess so i think in situations like this it's obvious that just to make somebody shaves you don't need to be pointing a gun at them and if we're going to credit was you know you're violating a court order by not shaving so here's your risk it was an acting on awfully and yeah that's that that's true there's actually a distinction there are two court orders in this case for two lineups case and even a force was i was authorized gun is excessive