may this case this case involves a tragedy that happened to generate fourth two thousand and eleven when mr stamps died as a result of an accidental discharge of a weapon by officer duncan during a high risk raid on a house in which the officer suspected that there were guns present this case also is an important constitutional issue in which the circuits divide your time i think you may have a more serious need to spend time on the other aspects of qualified  right before the gun is fired up of the case part and told him we have we have from the police the whole scenario of the safety off the think iran he's lying on the floor he's looking up there are other officers in the room is that a violation reply you're setting up an immunity for the officers in a situation in which there is actual harm and now it would be a very bad policy for us absolutely some stances during a high risk search yes you can you can detain them you can point a gun there you can you're saying we should the united states constitution allows an officer in the search to any person he encounters to expose that person to any risk of harm no matter how great a matter how disproportionate to the circumstances and as long as all he's doing is exposing the person to the risk but he doesn't actually want the person to be killed there's no violation there first of all there's always of us fall off he's just to put exposing him to that risk and lo and behold one of them goes off you're talking about a wrist with the officers i mean there are these thing with some of these like what if you read all the cases in every case w courts address this the officer and his officers were holding weapons with their fingers on the trigger and going to struggle with a suspect whom they have no right to shoot much higher risks than just standing there in every one of these other and had been searched by the other two officers and was eighty seven years old could you after still come up put the gun on him turn the safety off and put his finger on it and start danc with that be a violation of the constitution if he has is well first of all if you decide that the shooting was accidental yeah he's just showing off he's not he doesn't intend and so but he's increasing injury and that's what the outline of cage is is about yes but what and maybe you better walk us through this because that as i understood it it's a given in this case that the man lying on the ground was no risk whatsoever to the officer there was no reason to have put a gun to his head series who are busy searching elsewhere i obviously think he's no risk because they've left him lying on his stomach and a hallway knowing there were officers behind them to secure the suspect and every high research and every high risk for the officers secure everyone in the house you do not make it a troubled nation while the search is going on the case they point to which held that holding a gun to have the facts the fact is the court looked at was it was the search was finished everybody was secure in the office or continue to hold a gun to the child's head i have the evidence in this officer duncan that's what he was going to do and the gun went off they say based on their experts trajectory that he wasn't doing anything just anything so you have this dispute that but you know for the purpose of this we have to finger on the trigger on the person lying on the floor what was he composition by having his finger on the trigger in the safety off in that situation there is no evidence in this case that the  what was the officer what did he accomplish that is at all reasonable given the guys on the floor there are two other officers there the guy doesn't know if the safety's on or off right the guy lying on the floor the guy in for doesn't know the because because the officer because no court has ever so well that's a different argument that's he didn't have adequate notice and therefore even if there was a fourth amendment ask you to save time to address that question as are is that a fourth amendment violation officer you asked with a hypothetical that the officer intentionally caused his finger on the trigger the officers all right so they're all happy going in there but they're really dangerous for the people in the building and we also know that there are hundreds if not thousands of these you know swatting incidents where officers show up and everyone inside an ordinary law abiding citizen so you've got to have some balance of reasonableness when he gets to some point the jurors start asking when they're that balances out of whack because you're out of there is the whole point of the twenty twenty question from the courts making those decisions with making those decisions and with seconds that he held the gun for seven minutes if you look at the holding the gun to the headspace which are much worse than i mean the look that i knew that the courts focus on well the search is finished there's no more as it's going on in this case the record shows they're in the midst of a search for a place where there might be a weapon ok because i haven't found it i'd like is an officer standing there for a while dancing putting his finger on the trigger this is somebody who comes across not secure if he's not tough those officers were secure they were the cup before they left them that's what they do they always tell people say that there are a lot of differing views of the facts of this case but you at oral argument and yet you jurisdiction on the basis that there are too many facts and dispute which you might have done instead you chosen to defend on the on requiring us to accept that proposition though it is zero qualified immunity so it will certainly does if the law has to be clear model that you are putting in front of us we did say keeping the rifle to the had a sixteen year old fifteen year old for seven articulated to you which is you don't just look at the end you look at the steps along the way and you are responsible for the consequences that flow from your choices which were in violation of the constitution and you seem to be saying no you are not responsible for the rifle out of with no finger on the favor of the safety he would have no case because officer one tell us in the heat of the battle i agree with all the cases that say once it's all over they don't have to do it that are less risky unless the suits start clearly establishing the laws that the prior staffs are  they courts repeatedly say on these facts of a given profit they won't see what facts they want so when you read all those opinions trying to figure out what's actually what facts will get you in trouble is impossible because they won't say it what they say is under these facts the might because there's a violation but in the cafeteria so the problem for the officers is that the courts don't say but other these facts it's it is a construct a violation going forward not clear today don't ever do it again judge say were chose not to follow the guy case which is the second circuit case decided before the broward engram cases and he also declined to follow the rights trouble ahead in clark cases saying that he wasn't persuaded and they seem to requirement is met when a person is stopped by the very instrumentality set in motion or put in place to achieve that result in all of those cases that god case the price case trouble fielding clar the seizure was affected by physical control by holstering by some other activity voice commands the guns discharged incidentally while they were being this case and said to you is that constitutional or not what case would you have pointed him to you told him to read one which he could figure out or a lawyer could figure out because it's kind of a fiction and engage in here that it would be unconstitutional that that's going to be the first step i have to answer so that the first is if you look at the cases that go back to one nine hundred eighty one that are in our  not hearing the case now we have listed force there's a long line of cases excuse me pointing to the west so what of course it does but legally is it unreasonable simply to point a gun at someone it depends on the circumstances yes exactly depends on how let's go back do you have a case with circumstances like this there is i can't find a case that is a creature says this is judge sailor noted the discrepancy between the amount of force that was used in the risk posed by mr stan's sixty eight years old on his stomach completely compliant no not to be a risk known to be in the house read it but when i get to the end of the case i then have the circuit having talked about seven minutes with the done on a young girl in a situation then says the situation would be very different if given the execution of these warrants tina had been detained with a weapon pointed at her for only a very short period need while she was being tough well your honor but once once the circuit says well we're not deciding that how do you turn that case into a clearly establishing that because the circumstances here are vastly different circumstances here are that the safety was deliberately turned off before you get caught or duncan's finger was on the trigger and let me just tell you what's in the record this is from the defendant officer duncan deviated from his training department rules and train and in this case we have three rules here that he violated each one of them was designed for the very purpose of preventing this kind of an incident had he complied with any one of them we would not be here today he violated all of them and whether it was from sheer incompetence which this court noted in the land all case that there is no one unity for officers who are just plain incompetent or whether he deliberately chose to violate his training and rules it doesn't matter it is clearly disproportionate force that was used here and i would add that the test is what would a reasonable officer do the day after this event officer duncan was terminated from the swat team in the reason he was deputy chief craig davis sergeant vincent stewart and lieutenant robert downing the latter two who were in the room that day all said that there was no perceived threat in that because there was no perceived threat and because he was not actively clearing the room he violated procedure by having the safety he also violated the procedure by having his finger on the trigger it's a written policy to record appendix age eight fifteen you'll see the policy no finger on the trigger at lest you intend to shoot the muzzle fergal the muzzle must be kept in a safe direction at all times in lest you intend to shoot your honor asked about what rules being arrested but at the same time the barrel of the rifle comes down on his son's head because it says force is being used the father th struggles to get out to go to the assistance of his son but you know there are from a ten thousand foot level all of these decisions make sense there is not another case like this one in all of these other cases there either is a struggle there's somebody of baiting the police yes but an objective officer i've just put out a scenario where an attractive office might think the father on the ground was insufficient to protect the two other officers who were then engaged in arresting the son and his friend well the rules of the department are clear unless he intends to use the weapon he shouldn't aim it directly at somebody in his face with his finger on the trigger there's a problem with  and i should add that the reason the plaintiffs went to great lengths to point out the scenario there is because that duncan's version of what happened is that he fell while he was climbing over mr stamps slid against the wall in the kitchen the other three officers who were in the kitchen two of them turned around when the gun was fired and they testify clearly and unequivocally that duncan was on his feet in the kitchen bullets go straight they don't turn corners and that is the story that they put forth is just so contrary to any sense of reality but i would like to just close with this there is an amicus brief that's been filed by a distinguished group of a neat guy in the reason for that is because this court's decision isn't just about giving some measure of justice it seems in these kinds of cases this co a stablish is the parameters of acceptable use of force by police departments in the entire circuit what kind of a message would it send to police officers and what would it mean in the future for searches and seizures if this court were to hold on these facts that duncan's conduct in dealing with mr stan's fully comply sixty eight years old on his belly with his hands in the air if an officer can aim a fully loaded semi automatic assault rifle less than three feet from his face finger on the trigger safety are what kind of a m used over simplified the qualified immunity and now says there are steps beyond that even if we were to make that the he is not entitled to immunity you're right i believe that judge sailors analysis on this issue is is correct and that is the amount of force here was so just proportionate that any reasonable officer would  his own colleagues of evaluating what he did made that same determination and they could be viewed as other reasonable officers in the same situation need to make in their expertise that maybe we don't have and so it's helpful to know if in fact all the police departments themselves say don't do something then it's a little less problematic for us to say it's unreasonable to