officers are challenging the city of seattle's use of force policy which restricts officer safety and disregards the practical every day dangers and difficulties of policing the policy violates the officers fundamental constitutional rights to self defense under the second and fourteenth amendments the genesis of the case is an investigation by the department of justice into the s p d in two thousand and eleven using a sample of use of force reports the d o j found that when they use force s p d patrol officers did so in a unconstitutional manner nearly twenty percent of the time this statistic has since been discredited nonetheless the city consented to a subtle men agreement with department of justice and agreed to revise their use of force policy the revised use of force policy went into effect january first twenty four teen in the ways identified in the first amended complaint the policy is overly complicated contradictory and dangerously restrictive it requires officers to behave in a delayed contrived and specific way to situations that are unpredictable fluid and fast moving it predicts the officers from using force unless they engage in multiple steps of analysis and then requires them to continue to performing to perform analyses and checklists while deciding what force to use and the extent of that force therefore it restricts their we've kind of got this in your brief what you're telling us now the issues you've really got to focus in on are is that a violation of any of these amendments regardless what the policy is and we've read it we know what you've said in your briefs about that so why don't you focus in on these amendments what fight what what amendment are you going to focus in on first and why is that a violation there i mean if i were to take control of your argument you don't have much of it i'd start on equal protection because i don't think there's anything there but and then i'd get back to second amendment you really gotta make your real case under the second amendment so maybe you ought to start there why is it is protected under the second amendment the district court erred when it held the second amendment doesn't protect restriction against restrictions on the right to use force in step is whether the policy regulates the use of force in self defense now britain's it regulates and then if it regulates it depending to what extent it regulates then you have apply in a media scrutiny with strict scrutiny so why don't you address that those issues this policy clearly regulates the to defend home and hearth i fair reading of heller doesn't restrict the use of self defense to the i quite agree with you and we said that in chill than i was on the panel the right is one of self defense right now tell me in what particulars is a policeman inhibited from using his firearm under the right of self defense  but the policy the policy absolutely restricts officers from using any force including the firearm until they go through this till they go through this deescalation scheme and to go through the deescalation seat scheme you have to look at why the subject's not responding and you have to consider one of seven reasons what is a deescalation scheme simply a very thoughtful way of piling up the elements of reasonable ones as to the use of a gun no it's not absolutely restriction before they can even get to be the use of a gun and and it is you read the this policy is telling policeman you must abandoned your reason and follow a policy which is unreasonable that's right the bat's what we're saying now there is a reason ok there is a through this deescalation but once they do then you get to that you get to the standard of reasonable necessary and proportional use is it your point that a policeman before he decides uses firearm to protect himself must go through the mental exercise of the deescalation process and that in itself imperils his life absolutely now do we have any examples of how that has worked in practice well this was a twelve b six decision by the by the district court the but you must allege while they go through the escalation process do you do that you please we do an e r thirty one to thirty two in your thirty five to thirty seven because if you have to call gets to the second step is remained required it is right because the district court didn't get to the second step they hit the first step and said that the officers don't know that while they have a right to bear arms they don't have a right to use the arms in any particular way this was a or because because the core component of the second amendment as a judge has said is is for self defense so i mean i me ask you a question let's before we get to the second let's go to the first step seems to me end of the first step whether the challenge is law burdens conduct protected by the second amendment has two different braun's right the first prong would be that it was based on a historical understanding of the scope which was outlined in heller generally but the second prong is whether the challenge law falls within a well defined and narrowly limited category of prohibitions right who has the burden on that problem who has the burden of proof on that problem the city would because it's an exception to why is the city would because it's it's an exception to the rule if we show that if we show that it it impacts our are the core component of the second amendment which which we have in the city would have to show that it would be that it's a hello i ask whether the challenge is law burdens conduct protected by the second amendment  would have me ask if i'm asking that and then jackson says i have to ask whether it was burton conduct protected based on the historical understanding and then the second part is where the challenge law falls within the well defined and narrowly limited category of prohibitions was that your not your burden if you're the one who has to show that somehow this challenge is burden conduct by the second amendment ok why is it not your burden because to be fair there's not much in this record about the prohibitions that have historically been on protected and frankly that's where the district court came out with their her understanding here she said there's nothing here that says this is a prohibition there's nothing here that should yes it is so therefore i and here know i'm putting it right to you and i'm going to say the same to the government i mean there's no question judge may is case of chauvin which is a criminal case he put the burden on the government but this isn't this this is not a criminal case this is a civil case and you're the one challenging the law and frankly i don't find anything in here that suggests that there was in fact a prohibition that had been historically understanding of the scope i'm going on bigger than that i'm understanding now that challenge conduct has to go between something that is a category of perp prohibitions that have historically been unprotected and in general in these cases i have exact on a few i have all kinds of lawyer review articles about this this isn't the record that's in front of us this is a record of all kinds of law review articles which would get me to this part it's not in this record because we're relying on the language of heller and and mcdonald which went through the history of the second and you don't get through this you don't get even you don't even get to the second pro that's what the district court did that was its analysis i believe the district court said that that the officers didn't have the ability to for didn't have a constitutionally protected interest in using a weapon in any particular then why is because she couldn't find any prohibition that was historically protected here in fact she found it wasn't there when the officers are asking for it for a policy policy she said you're now in government work you're now using these weapons only because the government provides them to you and when the government provides them to you the government ought to give you a chance or as some some if you will direction on what to do with them and she said i can't find anything that's a prohibition of this in history and there's nothing in the record  the officers aren't arguing that that there can be no restrictions on the policy they're arguing for reasonableness standard that the question is whether the officer's actions are objectively reasonable in light of the facts and circumstances confronting them then and police yes yes the the city gives the police officers guns but they're required to carry those guns and they're required to go in for situations and face them and they have to have the ability to right to defend themselves because are duty bound and mission down to to walk into danger so if i get you through the first prong and now i go to the second prong why is this case require any more than intermediates group because your analysis here if you're going to apply the the tears of scrutiny and not just go off of the text history and tradition of the second amendment the question is how close the challenge policy comes to the core of the second amendment right that's the first step and self defense is the core of the second amendment right and then the next step is the severity of the policies burden on that right and it's it's an absolute restriction of using the metal checklist which will freeze him to a point where he can't reasonably defend themselves that's correct that's right then it's not an absolute restriction that correct it's a restriction until they go through that chocolates and then once they finish the  checklist then they have additional restrictions about unreasonable miss necessary and end proportionality so it doesn't end and your honour's right it is the the frozen what am i supposed to do here that that increases the danger to the police officers and restricts or cost to chanelle ability to defend cells if it really regulates conduct close to the core of the second amendment and how do i distinguish these cases like in quist cafeteria restaurant workers union versus mcelroy which suggest it isn't quite that close when you're a proprietor and you're managing the internal may please the court and greg narva representing the city of seattle the district courts dismissal of the amended complaint should be affirmed by this court in every respect and while i'm happy to answer questions about any of the claims in the case i plan to focus today on the second amendment and time the right to use a firearm it regulates when officers can use a firearm but i'm going to go further and say it doesn't regulate any right protected under the second amendment these are not second amendment concerns under children and we we said that if it regulates the right to use a foreigner in self defense then that is established as the burden under the first step then the question is  measurement of how close the burden comes to the core right of self defense and to what extent does the burden agree that this which is old so therefore i think you'd be better off by directly remarks to of the district court's opinion and i believe it's what judge smith was alluding to a second ago there's a threshold issue of whether the rules that a police department sets for the government owned weapons that it issues to its officers to use on duty and then the rules it sets when you can use these weapons and how whether the second amendment has any role at all in assessing the validity of those rules and the appellant to take it as a given that it does apply but the district court called this a novel theory and i think that was absolutely correct i think you can start with the analysis in heller which catalogs as you know hundreds of years of history beginning in england the common thread throughout that historical inquiry is that the right that was  right of the people to bear arms against infringement by first the crown there's talk of james the second charles the second and george the third all the efforts they tried to disarm both england in the american colonies and that's what was being c individual right against infringement by the government but nothing in any case law or the historical sources suggest that the second arm and second amendment applies to the arms that are possessed by the government itself and are used in the course of government act you look like at all question i was going to ask who carries the burden on this issue the the plaintiffs have brought the claim they're the ones who have to show i believe under heller and this two part analysis that the right there asserting is one that the first part of the test does it ever i reach over and suggest the government has the burden and i think that either way i think it's this is an issue of law about the scope of the second amendment i frankly don't think it matters who has the burden i'm happy to try and persuade you the reason i ask you that is because i've seen these cases before and we get to this point and i'm looking at all these laws review articles and all this stuff that has to do with whether in history this category of prohibition has ever been protected or not and i'm trying to find it in this case i don't have that i don't have it either it has never been protected the idea that the that the weapons possessed by government actors police officers members of the military are subject to second amendment research would you saying yes to a policeman you can't carry anything but a service revolver and that's our revolver but he you can't use it you know i'm saying that an officer of mine might say oh it's only the government restricting its own arms that assumes that the government is restricting the individual citizen from using a gun to protect himself true i might have lost the train of your question well sorry once you tell the officer he can't have anything but a service firearm at home or or officer he's subject to the rules now for the most part by the way recognize that and duty police officers have far more expansive rights with respect to weaponry than the general public when police officers at home the same rules apply to any other member of the general public that's the hell rifles police officers can by law so can members of the military their places the general public can't bring weaponry like court courtroom schools police officers can't police officers are obviously authorized to use force in the exercise of police powers like affecting an arrest that's not a power the general public has but no case and none of the historical records and i know counsel's read them and i know the court has and i have there is no suggestion that the good weapons possessed by the kings of the by the king's forces or anyone else is a second amendment concern this is consistent with the construct of the bill of rights unlike other parts of the constitution where there are explicit grants of authority to the government this is about the rights that are possessed by the general public against interference by the government and supposing i don't agree with you then what do you do with the third part of the test well we think this is clearly this is not a strict scrutiny case this is a this is an intermediate scrutiny test intermediate scrutiny test if the challenge the law doesn't implicate as a core second amendment right or doesn't place substantial burden on its intermediate scrutiny here the reason for the deescalation procedures was to address specific concerns raised by the department of justice in its findings that there were uses of force often against people in mental crisis where some slowing down of the process might of avoided the use of more speeches because of how would you define the core second amendment right well heller says a lot about what those are but essentially what i've said it's the right of an individual clearly to defend hearth and home where heller is i know there's been some question about how far outside the home that might have been there goes by the exactly but but where we talking about police officers i'm saying first of all of course the answer to question number one is no if somehow good regulation of officers is incorporated in it i don't see that as a core constitutional right that it's the right of the people who were being disarmed by the king in england or the colonists and so in your view how close does it come that does the right of a police officer to use a firearm in self defense come to the in your view the core second amendment right it's not a second amendment concern at all if there  constitutional limitations on what a police department can say essentially taking the use of force off the table altogether no that's not this policy of course but the one constitutional limitation that's in this complaint that might apply is a substantive due process one where there is an established body of case law about executive government action that places government employees at unreasonable risk it's an incredibly high burden to meet and we argue that the amended complaint here which is based on three year old allegations before the policy had really even taken effect doesn't come close to meeting the standard but if there are concerns about you're freezing our ability to use force substitute due process is the right way to talk about is the right area to focus on the second amendment these are not second amendment concerns a lot of you know not every carrying of arm in this country derives from the second amendment and the arming of police departments like the military those are not second amendment concerns that is about the individual protecting from infringement by the government if we are going to talk about the is this government action that has put its employees to much risk then we are under substantive due process and there are two ways they can make that case one is the shocks the conscience standard and i don't think we're anywhere near that with this policy that you know hyperbole aside this doesn't disarm the police they have the right to carry arms they have the right to use those arms there are some d escalation steps that have been called into question the other thing i want to stress and this has to do with the two requests for judicial notice we made is that we know what happened under the policy we have another federal court court with three years of actual data in front of it showing how this is played out now we have not asked the court to take judicial notice of the data that's in those filings simply to note that there is another court where this has all played out and so rather than appear there there's been no inner motion to intervene or to appear as an amicus by the appellants they go on a three year old record at the outset of the policy as this court to accept it all is true and then essentially make new law take the second amendment to a place it's never gone and the fourteenth as well declaring a new fundamental right we don't think anything there comes close to meeting meeting that standard are good colleague judge hayes ash should we remand this case since the district court only considered the first prong no i don't leagues any need for a rematch and this can be decided on all issues as a matter of law by this court the full policy is in the record the court can see as the district court did that nothing about adding this deescalation step shocks the conscience and again we assert that no nothing played in the complaint about a police department policy it's a novel theory is the district court said it doesn't invoke any course second amendment right i also would point out that the substantive due process cases we've cited collins county of sacramento from the supreme court slaughter from the fourth circuit lamar from the circuit are all decided on motions the appellant's chose to file this at the outset of the case it's essentially a facial challenge at that point to the policy because the record hasn't been developed to show here are instances in which deescalation has caused harm that's the record they took up on appeal now nothing prohibits them they can be in this court making this constitutional challenge and also go to judge roe part and say based on three years of experience we were right three years ago here's what has actually happened judge robert has in front of him right now a new set of proposed modifications to the use of force policy they don't touch on deescalation granted but wouldn't this be an opportunity for a party with genuine concerns about what's happened in the last three years to appear in this court in his court and say that it doesn't preclude them from making a facial challenge here but rather than accept essentially speculative speculative allegations as true they ought to be in front of the court where we know what has actually  last three years they've sat those proceedings out altogether and are asking you to create new ones so i don't i don't believe a remained as appropriate if they want to file a new as applied challenge i presume this court's opinion could could grant that right that the challenge they made at the outset that nothing on its face about this policy violates the constitution we think that should be affirmed if there are real concerns about the way this is played out over the last three years it ought to be on a full record or in front of judge robert seattle as you know is one of a number of cities around the country where police reform is playing out under the oversight of a federal judge which is what we have here baltimore cleveland fergus or a few of the other examples in our consent decree the use of force policy is the absolute centerpiece of it it was at the heart of why the department of justice came here it is critically important that we get that policy right and if the officers can show something about it that hasn't been working the ought to be participating in those proceedings but that's not what they're doing they're asking you to come here and create a new fundamental constitutional right into the fourteenth amendment and apply the second amendment to arms possessed by the government which has never been done before so we are asking you to affirm the district court's order on the merits this court can do that knowing that there is an alternate forum available to the appellants to express concerns about the policy whether it's in the form of a constitutional challenge or just a practical one here's why there's deescalation things aren't working for us they can take those concerns there this court however should dismiss the merits at the dance or any additional questions and there is no alternate form available to these police officers that's why they brought this case and the reason why we're talking about the allegations in the pleading because this was a on appeal of the twelve the six dismissal the officers didn't get to present evidence of how this policy impacts them on subset of due process that it was error for the district court to use the shocks the conscience standard that the sacramento versus lewis cases use the shocks the conscience standard when when an action is executive as opposed to legislative and other words it depends on whether the challenge action is aimed at specific act of a government officer at issue and that's not this case this is a this is a monella challenge on the policy don't you believe that rectify that case collins versus the city of harker heights texas which is the united states supreme court telling me don't do it that said that a police officer doesn't have a right to was to a safe workplace against other police officers i believe that was one where a police officer was shot in the line of duty this is different this is the this is the government and i was and i'm frankly having a hard time understanding why this is so different as i read collins and you are now talking me about the fact and you're saying this is worse than that and they said in collins don't get involved that's not your area this is unchartered area scarce open ended the doctrine of judicial restraint says don't go there but we have we have heller that says self defense is a fundamental longstanding right and if there's a fundamental right then there is a subset of due process ok i want to talk about the polls one last time because we've been focusing on deescalation and this isn't just a matter of deescalation once you get through the deescalation the work needs to be the use of force needs to be reasonable which includes the consideration of thirteen factors and then necessary and proportional and it defines necessary as no reasonable no reasonably effective alternatives are available and this court in its scope to hundred case said that that's an impossible standard and so when you're looking when you're asking are there are there historical recognitions of of an officer's right to use force perhaps that that would be in the fourth amendment fourth amendment case law this court said requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment and heat of the battle with lives potentially in the balance an officer would not be able to rely on training and common sense to decide what would best accomplish his mission instead he would need to the least intrusive alternative and inherently subjective determination and choose that option and that option only imposing such a requirement would inevitably in induced tentativeness by officers and thus to tour police from protecting the public and themselves  and that's what this case is about the second amendment right to a right to protect herself exists and applies to the police officers and if the court finds that then we get sent back to the to the district court to develop a record on how it impacts the officers cor