of qualified immunity was intended to prevent suit against law enforcement officers in this case city of leeds police officers were dispatched to an apartment at the same and that the plaintiff mr hunter was a suspect that he was armed and he was sitting in a mine harlow in front of the as they arrive on the s the officers are coming from different directions and officer kirk comes in straight is perpendicular to the planet for his car it's undisputed that he gives commands for a planet to raise his factual recitation here i mean i want to make sure that you're telling your retelling the facts in the light most favorable to your opponent given the procedural posture but how many of the facts all the way up to the very end whether we pointed the gun or didn't point gonna matter i mean like isn't that sort of the dispositive fact either pointed the gun at them which is you know sort of really good for you going to the point the gun at them which is really good for your opponent under the arguable probable to look at the totality of the circumstances which start with you know even the graham factors the violent nature of the crime and here we're talking about a child that had held hostage at gunpoint is what the was reported to the n one calls and that there was an exchange of gunfire and so i think we're looking at what is no will and no officer kirk essentially and i think that that's why that's direction for the planned shot stomach which is what officer cards as i understand there were two separate shooting and right he came out the officer shot and then he went back into his car then they said stall out the gun and he says he threw out the gun and he that are we sure that that gets still sort of going around his neck now absolutely by what by virtue of what doctrine are we hanging around his neck i think this is close i mean i think we've got offense so starting from that premise then we look at the alabama rules of criminal procedure fourteen point four b and thirteen point two and thirteen point five which combined to say that a judge ff it's in the order this was satisfied that there was a factual basis that he understood the plea and its legal consequences so here is what i'm kind of getting at i wan say in response to all of the stuff about alabama law and guilty pleas kind of granted granted granted granted and now they're worried that that was a criminal prosecution of the beginnings of a criminal prosecution now in a civil lawsuit against a different set of defendants right you've got  it is accepted that he planted a gun at the office then the question remains given his version of the number of times he was shot at whether or not that was beyond out and he pulled the trigger again but it was not until he went back in the car that's at that point he was contained that's when he had to quit pulling the trigger i don't i don't think there's any clearly established president ha s any certain number of shots we don't believe he hit him every time we don't know that he fired twelve times then they tend to another shot or two and you've got t established prong of the qualified me standard in that plaintiff did nothing to satisfy the burden to show any one point precedent which squarely applies this is not a under these type circumstances and facts and a fourth of any sort of thing it's not ok obvious violation scenario that these are very fact specific cases  to be on their own facts and which the supreme court has indicated requires all the while the case doesn't have to be a mirror image it has you need a factually similar case where and so this is why i guess i want to go back to the guilty plea and why it matters so much to me the fact either is or isn't established because if you take the establishment of the fact that he pointed the gun then and then you take all the they can just download on him well i don't want to get involved in some attics but pointing the gun there's no dispute that his arm came out of the vehicle with a gun in his hand and it turned into a direction toward the officer whether he was eyeing down the sights and pointing it at him you know it's not something that officer can perceive in a split second but so that say he never pointed the gun i think is slicing the cheese a little too thin i think the question is when you start from a call from my hostage situation gunfire ignoring commands getting out of the saudi over the car you know nor in command exit the passenger door to the closest house and when he comes he's coming out a vehicle his arm swings out with a gun in his hand i wonder how like you're from your posing counsel as to whether that's a fact on the record not about say your way that the district court clearly pointed out in your opinion and say that this is not a case that some adjustment is appropriate is one of those disputed facts whether he pointed the gun or is that established by the facts in this case my client pleaded as a bit interesting first of all to the fact that it was conceivable as a lot requires that there was a fast we could have been charged with missing charge made where you live in a vat and he pleads to sometimes in these criminal cases there's an indictment and they get together and plead to something else and there's a direct information not a grand jury indictment agreed direct information collateral charge to the guilty plea as i understand it nothing happened in the criminal court in which mr hunter move to vacate the who said earlier today plea of medicine which was his best answers for two years but but but pursuant to an indictment alleges that he pointed a pistol at peace officer robert kirk and so i'm trying to figure out you know you just mentioned a second ago ok that's what the indictment says but he's got a declaration where he says i didn't point the pistol at officer kirk and so in in this lawsuit my question is can he do that ok so explain to me why he can do that and why what i what i thought your opponent would have said is no no can't do that because for instance he's collateralised up for doing that or there is judicial stop and he mentioned something about judicial admissions so they're always kind of doctrines kind of banging around about why it is that the established let's say in the plea agreement remains established how is it that that it remains established or doesn't in your estimation because the  the foresee there's just two different subject matters excessive force in the self is the the either the intentional the malicious negligent use of force or far beyond what was necessary to also kirk five ten times with the poles in between those ten shots there are also two bullet fragments recovered at the scene in evidence that show that another officer was shooting from a different direction because it was client and that's a matter for school excessive one round according to my class there for they would instruct him in the back also kurt couldn't the shot that couldn't make that shot because he was facing so you say even if you're stuck with so your point is that you could be guilty your guy could be guilty of menacing and nonetheless have been a victim of excessive force yet you're not sort of collaterally attacking the conviction for menacing could have been a menace still got excessively forced yeah i got as far as i'm concerned you have a very narrow argument your client pled guilty to pointing the gun at the officer that the best the minute the court accepted those facts that's what webb's indictment you it was a lesser included offense but the fact was he pointed the gun your are your only argument is my as i see it is he he is guilty of a crime he did point the gun of the officer but the officer overreact worse if your claim was not for excessive force but let's say for false arrest right because at that point there's no way he can be guilty of menacing and have been falsely arrested for menacing or malicious or prosecuted for menacing but we've been talking about that were something to do we have immediate appellate jurisdiction over the back issue you know these things that come up to us and denials a summary judgment in the media to balance authority over the qualified immunity piece of it but only other aspects of the case think it's just in case it talks about the fact that in a locked or appeals where the only issue is judicial it munity it's not proper at this point to litigation anyway know on appeal we're not raising we raised heck collateral stoppel and you digital stoppel we didn't raise them as independent grounds with that to be possible but we're talking he hears is one i mean it's taken us longer me longer to articulate this than it did for it to happen where he where he pulled the trigger you know whether