our st case today is our own job's versus new jersey state police this for free controlling precedent no a robust consensus up a spaceship authority on may th two thousand and eleven that would put an officer in his position oh that would put an officer in his position on notice that his use of force was excessive the specific circumstances that bottle it was facing that evening was an individual who for the past day had been engaged in an escalating sequence of erratic violent and criminal tell new that stevens had obtained a restraining order against givens that givens had violated at all or by returning to her house arguing with her while he was waving a gun in his hand but tell learn from gibbons mother that he had stopped taking his medication but tell pulled up alongside given's in a residential neighborhood and pointing it to his own head and stated again stay away from me givens refused to successive lawful commands to drop again bah tell stood only seven require an officer in a tense and dangerous situation to wait until the moment the suspect uses a deadly weapon to act to stop the suspect does he have to wait until the suspect points the deadly also knew that he had violated a restraining order within twenty four hours of the restraining order had had been issue had been issued so it's not simply a matter of his possession of a gun it's the totality of circumstances that was known to so to allow bob tell to continue standing there under the circumstances of this case waiting to see what gibbons decide to do next with a gun it would be a reasonable this is not a case where he was just simply armed with a gun and and bottle it just came upon him while he had the gun already pointed to his head to have jurisdiction to determine whether he acted reasonably didn't the supreme court in johnson purses chose say that that's d a factual determination that's well not to force at this stage of these proceedings well there is no dispute that he was in possession of a gun there is no dispute that he went to his girlfriend's house got into an argument with her and was waving the gun around and there is no dispute disputed given that it was aware that he had stopped taking his medication and there is no dispute as to what happened at the scene right there no to no dispute about those things but there are some disputed facts here my question is do we have jurisdiction over that to resolve the disputed facts now well yes i think you do yana because those those disputes are not they're not they're not genuine dispute that would change the outcome of this case well that's a different that means they're immaterial that doesn't mean we have jurisdiction over them right that that is correct but just court can also decide it then it seems that yes there is there is case thought that suggests that if we if we narrow it down to these specific instances then your point is is more well taken at least as of the date of this incident is correct and the supreme court should be made within a specific context of the case this case has unique facts and the gone to the general gone language should not be used and but that does not double in judge hardman's question of if we're going to go into more specific facts don't we have to evaluate whether those facts are in dispute or not because if you want to more if you want a more specific articulation then you need facts that are clearly not ingenue material facts that are not in genuine dispute at the time in order to get that formulation so i guess the question is is your formulation based on material facts not in the formulation of the clearly established law based on material facts that are material facts that are not understood would permit discourse to make it to the side rather the law was clearly established so maybe the closest cases been against murphy which again involve the suicidal suspect who was armed and refused to drop his weapon and has simply shot him in that case we said that was a constitutional violation that is correct why isn't there this case well in that case for three reason being it would not be controlling here st it was an unpublished decision secondly the court decided in that case that that the officer who used deadly force did did so for no reason other than the fact that he was armed with a gun and that's it the standoff in bennett had been ongoing for over an hour without the suspect threatening anyone and the officer did not have any reason to believe that he posed an immediate threat when deadly force was used based on those circumstances the court denied qualified immunity and there were also factual destroys from other witnesses in that case that served as one of the basis of that that qualified immunity was not granted in this case there is no dispute regarding the officers version of events that happened at the scene he also is no dispute regarding what happened at the home of his girlfriend in addition to that the dispute in bennett had been ongoing for almost an hour the officers had almost an hour to assess the threat in that case and this case triple by tell only had seconds to make a split nd to make to make to make a judgment on rather deadly force was appropriate and again there was no controlling precedent that goven his conduct on the day that that he used deadly force so we think that the factual differences in this case would not make ben a controlling does choir for this case given the uniqueness of what happened here should be should be should be crafted to the unique facts that exist in this case and does not deserve there are no gonna language like let's get into that for a minute because clearly the supreme court has admonished lower courts to not define the right it too hard a level of generality court's done that time and again but exactly how specifically are we supposed to to fi do you define it as a schizo phrenic man who's violated a protection for sure who's training a gun on his own had fifteen feet away from an officer hiding behind the door of a car is it that level of conclusion that firing two rounds at is suspect who had a gun in his hand pointed at his own head standing only a short distance away from the officer and who refused to drop a gun after twice being audit to do irrelevant to the clearly established analysis well the there is no special provisions for anyone who may be mentally unstable regarding the use of deadly by graham versus khana of rather that suspect poses an immediate threat rather deaf person is is is taking medication and not so it would not weigh into the offices decision as to rather deadly force is appropriate what did he know what happened we are in dispute in regards to the entire transaction so therefore our mr freeman statement that there is no facts in dispute is  house there's an issue as to whether there was a gun involved or not because the state dispatch was the st person to the st anyone mention a gun back particular difficult you are clearly correct there are facts in dispute law requires that an officer faced with an armed suspect has to wait until the suspect points the gun at the officer before the officer shoots the suspect you know that's not what i'm saying i think what i'm saying is that there should be some sort of they the issue is fair there must be some sort of a level of fear or something to trigger ads i suggest the issue is whether there is clearly established law because yes this is not just a question of equity and what's what's fair this is a question of whether the officers are on notice that their behavior might contravene the constitution that requires clearly establish law right so what is what i am challenging you on is what case or cases say that in this circumstance this type of circumstance it violated clearly established law for officer battell to use deadly force when i think new property crime shot while fleeing write history on him and also how how do those facts have any relation to this case where we don't have a youth we have an adult we don't have an unarmed man we have an armed threat to someone else one was a neighbor and one was a social worker one was that a police officer themselves there was not a situation where there was an active there was statements made by those  weapon and so there's a difference in terms of do you think the car that that was was driving is more of a deadly weapon than the loaded gun that mr gibbons is holding brandishing in this case you  and i don't think you're one of the sort of issue i do believe i think it's not more but i do believe that in those cases there was an issue of some act by the suspect some some overt something else than just standing there trying to that what was there at the officer at that moment we have a suspect that did nothing more than say stay away from me and within seconds it was that so in this situation these facts are completely different than others of the case because yes there was a gun involved  brandishing of the gun but if that doesn't help your rd different because it's your burden to show that there's clearly established war that demonstrates the bar told cannot use deadly force in this type of circumstance public so so let's just say this one thing that the supreme court's done is the supreme court no longer adheres to the garner formulation as far as level of generality so so so one of the things th saying is that there's facts in the subsequent cases that are different from these current facts but the reason that there has been a focus on those facts is because the supreme court no longer tolerate the expression in garner of such a broad level of the clearly established right so it is so at a minimum i think if i'm hearing what you're implicitly saying is that the garner formulation of that an officer may not use deadly force  is to unless you offer reasonable leaves that there's a risk of threat that is too general a formulation and so in so now what it seems that your task is is to say that you can offer some more narrow formulation and what you have to do that more now formulation is is make it more now so it's not overbroad but also show that it fits the facts of this case and that some other case established they were done many of them were worth before the supreme court's decisions have come down in terms of student i suspect that has sort of mental issues many of them have been there so we have to accept the issue then becomes to some extent now do we have cases that are we saying that some of these cases or so facts that certain level when they're when the material disputes in terms of the facts specificity should it be then sent to a jury in terms of re come up on the suspect with a gun or with any deadly weapon you can shoot them but that your point about this leads to kind of the not the non development of the law because if we just look for what's clearly established and never water and then pearson comes along and says you can pick and it seems the courts tend to pick oftentimes a clearly established problem because it allows for a very coherent legal analysis of measuring fact is very where we have a case on the the situation you're on air i'm just wondering if you have this supreme court that said we must be more specific in regards to looking at these cases and we have facts of this situation which allows that that's what they ask you to do so we now are presented facts to you that are in dispute to some extent and you might not find them in dispute because they're very narrow but we have people on the scene that have said these things are not occur so we would have to agree that every fact that was given to you by officer bargello now facts that would allow you to decide that he did everything he was opposed to and therefore he's got an immunity and our argument and that's not exactly the case on so that's where we are so in reality  cases you found them to be persuasive however under the circumstances we do believe that officer bar tell based on the different statements the fact that this was a situation where there was nothing else done we have terms of what triple bottom knew it was reported over the radio over the state police radio that he had violated a restraining officer trip about it was fully aware of that and he didn't have to see the restraining order to have known that the restraining order there he violated a restraining order by going to her house ogling with her and grander seeing a gun and mr lee mentioned earlier two versions of what joanne layman saw from from and when you look at the facts doubt on not that we don't accept that the defendant's version either but we just throw that out that's not part of the evaluation anytime there's a dispute issue of fact it's not part of the qualified immunity evaluation facts of the case and so as you begin to tailor that down to facts of the case that runs into the problem that you're posing counsel talks about that more and more those facts as you get more narrow become more and more in dispute and we don't have  it comes to facts in dispute so it seems like what your task is is to formulate a version at a level of specificity that also doesn't involve facts in dispute that is correcting on a bit to unique aspects about this case  imminent threat with those facts we think that they're there if those facts are sufficient for the court to determine if the law was clearly established even if those facts