a nd reason is that the district court made certain factual findings that should have precluded summary judgment even based on this granting of immunity and the rd reason is that the record contains  evidence at least a vast amount of factual disputes that should preclude in summary judgment based on whether or not the officer was conducting a protective activity or a law enforcement activity y right that state subset of law applies but aren't we bound by th circuit precedent that interpret state law absent some intervening state court decision that undercuts it though isn't it appropriate here for us to look at prior least published ten circuit opinions yes you're absolutely judge you should however case is you're referring to that were addressed predated their decision we just miss them nor them depending on what case that you're talking about i think there's an intervening oklahoma court decision we would not be banned by something we had said before that of them a decision contrary to what we said in their decision that we've got a problem if we had looked at the precedent predating or prior decision we might not have come out the same way and i wrote about that or did i even make sense of course you did judge and and it is a matter of really fundamentally the state of oklahoma finally coming in line with the type of interpretation to that specific immunity that other states have found themselves found to oklahoma was pretty unique in that we found ourselves granting immunity to an officer who all i mean the way that case law read it could lead to very perverse results for example police officer steps out of a car sees a person a needs protection decides to shoot at him instead and the only thing that they need to  n site to do in response to our summary judgment is that they were in the act of protecting the initial stages are protecting that's all that person would have to say they don't have to provide any proof for example you probably didn't provide any proof and they certainly didn't respond to the allegations that were raised by the appellant plaintiff in the deposition testimony where he says he's responding to a crime verdict on everything we're talking about right now because and maybe just step back and describe for us what was at stake with the jury and what the jury and then tell us how that affects anything are dealing with well unfortunately it was a it was a general verdict so i don't believe one could necessarily discern a great deal of one could discern that the jury did not believe that the deputy had acted wrongly and firing  individual didn't even part gun at the officer but we have it now and that's a big iceberg and a lot on know how we get around that iceberg if you have a way well number one it was a it was a general verdict i don't even know if it was made a part of the record by no it wasn't i don't believe by me i don't believe the pelly either or whether or not there are any actual all these cases cited by the heavily cite you cases were and in every single one of them the court found that their officers conduct was objective leave reasonable however in this case the district court found that the important thing because we have had cases where a district court has that's very interesting judge feels brought this up because i can call i think you case where the you  was improperly granted summary judgment the case went ahead against the individual and the jury found didn't didn't get into a qualified immunity just said there was no defendant the jury would have had to find in favor in this volatile given the finding with respect to the office that you've said that there are differences in the substantive law here because we don't know whether the jury verdict granted the defense verdict based on qualified immunity or just that it was a constitutional violation and the state well it just requires negligence fundamentally different and a bit of a stretch i don't know how they could be analyzed in you know in the same paragraph really  well is there a way that the jury could find that there wasn't a constitutional violation and still find that the deputy was negligent isn't the jury's finding that the sense of lead the deputy had returned fire otherwise they would  parcel out certain facts that they specifically find i don't know that i feel comfortable trying to speculate about what a jury might find in you know in the confines of a so here as sure you are just it has not been based on your thank you and i would like to reserve a certain amount of time for both i could if there are no other questions sufficient to overcome summary judgment on the issue is whether it was exclusively for protecting us are you saying that even if it's not explicitly for protective purposes if i many one question i'm the same place judge kelly which is i don't understand any of this discussion because this is not something we don't have a situation where we're examining what a policeman did with respect to  person and was the policeman by restraining this person protecting the person who was at rest in the person we never get there that deputy arrives and whatever sent his head i'm not sure i care because what the deput doing is investigating the dept is trying to figure out what do i have here do have a protective services or do i have a under arrest and never gets to that point of deciding the learning facts that enable deputy determine that because it is met with gunfire and shooting back is not a protective service and i agree with judge kelly on so help i don't understand what i understand all those other cases that you're citing why that was important could be sued for negligence when they're engaged in protective services and they hurt somebody in them times officers and gates you protect your services you end up shooting the person and it and they killed a guy which is very unfortunate but i assume that the purpose of the statute is that sometimes when officers engage in protective services it dealing with he's trying to get to the chase i'm taking more time than i hope to these are very problematic situations and sometimes they go terribly wrong as happened here isn't this just the sort of situation that the statute was meant to protect officers from before that there they come to a situation worse they're trying to protect somebody from himself in this case and that person acts in a very dangerous self destructive manner would you respond to maybe i'm totally misunderstanding what the purpose that i think that they have and i think that hurts and then smith versus city stillwater aap fundamentally change the landscape now the purpose of the statute as was predated our it was earlier than smith but it says that with their with their talking about as far as the method of providing police protective services they're talking about the method they're talking about the implementation of policy i now johns that in my brief to like a legislative function how they vote on stuff how they decide what their policies are go and how they implement these policies and they should not be applied to the individual officer making discretionary decisions out in the field this statute was never supposed to apply to those individual officers that's what smith says that's what gert's says and counsels writes these these cases had to do with car chases but  that's not what i'm talking about when i'm talking about is those decisions are immune under the statute and should be immune because there are policy based decisions on how their policy should be implemented there but it ends when the police officer leaves out the door and has to make those day to day decisions that immunity does know there are other immunities that apply but not this this is meant for the policy makers  and the and the person who has come to help start shooting at the officer you don't think the immunity applies to the officers response to the shooting is that right that's correct there are i'm a loop of other immunities that would apply in that instance but not this particular one not one  fifty six because once he's responding to being shot at it's its change from protective to criminal that the reason no sir because definitive i think there's a fundamental change in the state substantive law and as a matter of fact oklahoma was the last holdout with respect interpretating it that way and now we finally come in line with the other states that we've stations from ny it took all your time away with my questions i don't know if the other judges have a question but i should give you at least a minute bit like to respond to anything that mr miller's yes judge appreciate that counsel said that when there is a hybrid event of both police protective services and law enforcement functions that the immunity would apply now in the us in university of broken arrow that's not what the court held it held that immunity did apply but it talked about how the state supreme court interpreted that protection as how it was defined in this case is restraining a subset a subject or suspect from hurting themselves which is which is a lot different from what the actions are  here whenever you arrest one of you sees not to protect that person that turns it into a law enforcement function and you can't have both under oklahoma law i believe salazar was the  defining principle behind that but also i think there's also a fundamental difference between when a person is taken into custody as opposed to events that happened before   police protection nobody was seeking any protection that didn't come up you know as an afterthought