truck david was a convicted sex offender who had failed to register as required under iowa law who had recently made contact with his teenage victim and who had made arrangements to meet her at a deer by a park had been working with local law enforcement for days on a fugitive investigation and was trying to locate david david was not a veteran we vies minor child  was wilson later sued lamp for damages under nine hundred eighty three this appeal arises from the district court's denial of lamp's motion for summary judgment on the question of qualified  now i've got relatively short time so i'd like to focus on two issues with the court's permission to key issues one is the jurisdictional question of whether the court has jurisdiction over this appeal and then the second issue is the failure of the district court identify any single prior case or any prior case at all where an officer acting under similar circumstances as special agent lamp was held to violated the fourth amendment as required under the supreme court's guidance in white be poly on the jurisdictional question i point out that in the very same case why be poly the supreme court emphasized the importance of appellate review of qualified immunity determinations stating that not only is it important to society as a whole but failure to afford an opportunity to review these determinations effectively loses the immunity for people like in public servants like scott lampy if a court erroneous lee permits the case to go all the way to draw this court knows i mean in mitchell before side of the court was i think very clear specifically because of the court's reference to disputed issues of material fact players also cite some eight circuit precedent that follow johnson the case pace two thousand other case thomas in two thousand and one in each case though this this court said there was no appellate jurisdiction where the challenge was to a factual sufficiency question dealing with an element of an underlying claim similar to the discussion that the supreme court engaged in hartmann and wilkie where they distinguished the factual sufficiency issue from the legal question in those cases of the elements themselves or the cause of action we would we would focus here and ask the court to focus on on barrons we think this case is controlled by variance which is decided after johnson and frankly when you read the language  and you read the language of judge bennett's decision in this case i think it is absolutely the case that as the supreme court said the judge bennett's denial of qualified immunity in this case necessarily determine that the conduct attributed to special agent lampy constituted a violation of clearly established law while if you take the facts let's do excessive force if you take the facts on the excessive force that that think i think that and so here's here's the pickle here and i think you know the court has been very clear that these questions of objective reasonable is the objective standard is facts specific it's based on facts and circumstances that  is confronted with and it's a totality of the circumstances test so i mean can you go through a long list and pick you know this case in this situation in this case another situation add it all up to to come up with the circumstances that that special agent lampy face i don't think you get to do with it but you agree you have to take the facts as levi said yeah i mean i want to make sure i'm not i am not arguing that we disagree with the fact think that what this court can do and should do is simply look at judge been its ruling and everything that he ses says is disputed credited to the argument in favor of wilson and if you do that then i think as the  show that we can set aside the argument about whether you might ultimately decide if you add all of those things together that there is a constitutional violation because that's not the task the test is is is the prior precedent that that clearly establishes that these circumstances in taken in totality the special agent like maybe was faced with is clearly established as a violation of constitutional law and the court didn't reference a single case plainness is not referenced in single case and what we have here and we've cited a number of cases that you can look to as again pieces that indicate that that's not the we we can look to chambers for example for this issue about whether you can make an excessive force claim without actual injury no allegation of national injury what about the p t s d on the child no case anywhere that says that a post ho diagnosis of p t s d is enough to make out the actual injury requirement under the age circular or us supreme court precedent i mean at the time there was no complaint of injury there is no evidence of injury unlike chambers where the court did an exhaustive review of the record and said there were complaints went to the hospital there was actually a diagnosis by docs doctor of a contusion diminished but an injury nonetheless and so you that there is not cause of action that lies for simply having a gun pointed at you that's another component that they try to get on the record before us it's clear that levi was fully compliant  with the officers directives correct and part of the excessive force claim is being thrown up against the pickup which is a use of some level of force correct are there any cases  that have demonstrated that a similar use of force was found reasonable when the person was completely compliant well the compliance is a difficult hair more of a subjective task but if we si thomas both are cases where somebody alleges they were thrown to the ground because they were complying or in grider they also complain that they've been pulled from the car but we have no issue here because levi got out of the car and at least as i read the record was completely compliant and did exactly what the officers told him to do correct with a gun pointed and i think that's true but i think again we're still this is an excessive force claim there's no injury in fact there's no complaint of injury in fact i mean he's claims that he was turned in face in the grab the wrist there is no case in the circuit that shows that that level of force keeping in mind that th law is clear that if you've got a good terry stop you have a right to some level of force to affect the stop and that's that goes all the way back to michigan you've only got a minute left but boy i'm running out of time here i don't know but is this any going to do with more than a yes i do i mean this isn't like the drive away the drive away it was was twenty miles away or something right here well it was a center is where the drive away in another vehicle was and you're saying that says you can stop a car here when the driver has their hands out the window as you approach the car well a couple things i mean this is it lights he just saw them driving down the street they were expecting to see david at the park this was in the proximity part they were expecting to see david meeting the victim they don't know they knew they have any basis to think david would be at that park you know from the mother of the victim who said that there was a plan that she was aware of that david facilitating this relationship and sell the idea and the evidence that that he that david was known to drive levi's vehicles and so i think you add all that all up in a situation where you expect david to be there you know he's fleeing you know he's now in flight and to see a car go by with somebody that could match david says description plus you know it's levi's car and i'm running out of time for one more honor isn't leaving right the reason you've got a terrorist out that now is they think david might be there which is why it is objective only reasonable to maintain control this situation until they confirm that they've it's not there why was david so potentially dangerous well i mean he had the evidence is clear and i think undisputed about a number of priors including violence section of domestic assault there were no contact orders in place  e there was evidence in the record again about about his fascination with guns he had numerous arrests and violations of no contact orders and numerous warrants i mean this is somebody again in the context of a michigan be a long night time roadside stop that it's reasonable for an officer to take precautions and i'm out of time address the hunch in order to understand whether it's appropriate to apply qualified immunity as it relates to jessica door hout it's important to look at what you do and what you did the totality of circumstances we start with the the fact that david is levi's brother david is wanted for failure to register as a sex offender in connection with a conviction for sexually abusing levi's daughter there is a no contact order struck the child's mother comes to jessica door out and says i have discovered that david is making arrangements to contact my daughter the victim in a park you're annoyed city in september of twenty fourteen when that happened jessica door out asked agent lana to assist her in apprehending david wilson while agent lamp was en route to orange city to begin surveillance he heard radio traffic about a drive off at a gas station in a nearby community the driver was driving a p t cruiser the defendants believe that david was driving a p t cruiser so he went there and he confirmed with the clerk by showing a picture that it was fact david who had driven away that's important because it tended to confirm what holly said was going to happen that night david was in the neighborhood and what like the drive to drive off so how many miles away is to drive off and the distance fifteen and so that's why it's important agent lamp meets officer door out in orange city they continue surveillance until such time as they see that a pickup known to belong to levi is leaving the area of the park when that happens they cannot tell who is driving it they know because holly the mother has told the officers that levi frequently allows david to use his vehicles that this may very well have been a switch it was reasonable for the officers to believe that david knew the p t cruiser was now on everybody radar that they were looking for and that he had every incentive to try to get to a different vehicle could brought provided when the vehicle passed by the officers couldn't tell who was in it they couldn't tell who was driving and for that reason they chose to make the stop to determine whether or not david was in this pickup that oh well isn't it true that when they see a few minutes later they did find a p t cruiser and they didn't jump out of the car with guns a blazing they just appeared in there to see if they if david was in there isn't that i'm sorry the p t cruiser with respect to the stop jessica door how did get out with her weapon drawn you had it in what you described as a low ready position which means it was point to the ground she was looking for a sexual predator who had violated a no contact order with a minor victim and who had absconded from the authorities and done so successfully she approached the passenger side of the vehicle she concluded that there were no passengers on that side in the passenger compartment may please the court my name is michael jacobs my i represent the planets up leads in this case and i believe that the primary question for this appeal that this court is presented with is whether federal law clearly established that excessive force can arise when police officers unjustifiably point loaded firearms in an innocent man and his six year old son which results in both of them suffering from entertaining treatment for p t s d and i would submit to you that federal law does clearly establish this to be excessive force and judge bennett's was correct in holding that genuine issues the material fact exist which precluded summary judgment as case it appears  that the defendants are attacking this notion on two fronts i believe first they argue that the conduct of the officers was reasonable just in what they did and secondly they're basically saying that it doesn't really matter whether it was reasonable or not because they say that the plane is really didn't suffer any kind of physical injury and so therefore they can't make excessive force claim so i guess i first want to talk about the issue of the  addressed whether brandishing weapons by please whether that constitutes support is not in the context which is the best case of criminal suspects i think us versus fisher is probably the best case because in those justified in brandishing their guns by looking at whether there was evidence of serious danger involving potential gun violence that was present and here in this case there's nothing anywhere close to that under these circumstances  judge bennett discuss this absence of this dangerousness is orderly he cited the following disputed fact whether officer door how he had ever been threatened by david or levi will say get to help me because as i see the holding a fisher from your brief is that the officers were ok and approaching fisher with drones guns drawn because they had specific information in the case yes they did and at specific information that there was guns being used in that particular case there was a report that the person whom those police officers actually just encountered was reported to them that the person pointed a gun at them and so when they went to investigate detain that individual yes they drew their guns and  had good reason to because there was specific information given to them that suspect fischer had pointed a gun at that individual the your party said that they had weapons well the only thing that in terms of having weapons was that he had a gun collection that's the only thing that in terms of any kind of weapons at all there's no evidence of dangerousness or violence in this case mr wilson david wilson was wanted on simple misdemeanor warrants no contact violation other the other items that he was wanted for failure to register failure to of david wilson being armed with a gun so there was no reason to when they stopped this vehicle which was unjust by in the first place but but aside being out of cyber a moment there was absolutely no reason for them to come blazing out the pickup with their guns drawn when they knew that it was very possible that there could also be small children in it and in fact that's also one of the facts i came out from the record was that officer door hol actually knew that my client levi wilson was taking his son over to the local cases there to make an exchange we had an actual phone conversation with officer door hot telling her that i have to go to casey's because levi is dropping off her son to me and i think one of the biggest glaring facts that shows this court that there was no reasonably reasonable belief that there was real danger here was because the police were quite comfortable with david wilson meeting up with a thirteen year old girl in the park if they thought he was armed and dangerous there's no way any reasonable officer would allow mr wilson to have an arranging meeting in the park so i don't think that the facts are in the evidence here shows that there is any objective reasonable as on the part of the officers to approached the vehicle the way they did with guns drawn injury the state talk to this court about chambers well the court and chambers shifted the focus from the extent of the injury to the reasonableness of the force applied so the shift was from de minimus injury to de minimus force in that versus harrington which has address whether ninety three action can stand for simply point weapons that play into us i would just like to quote for a moment from that that case stated the display of weapons and the pointing  firearms directly at persons enough capably involve the immediate threat of deadly force so that can't be considered just demand a most force when you have a loaded firearm pointed at you with the threat that you could die now the injury i think the record shows that the p t s d is suffered by the plaintiffs in this case also had physical effects to them i mean the record shows that with respect and w he was being deprived of sleep  nightmares because of the p t s d that he suffered levi the record shows he was and migraine headache sleep deprivation loss of appetite and he had to be hospitalized because of potential solved harm to themselves so i think these are definitely real injuries that can serve as a basis for an excessive force that there's a record show many times leave i've been arrested how many times leave i have been see the defendants argue that they should have qualified immunity regarding that but i believe judge panel was correct in holding that there's issues of of fact this was nothing more than really a hunch it was prohibited by it as prohibited by terry versus in one of the issues that generating this factual dispute was whether the officers knew of levi's presence in the park i referenced this earlier about how there was an actual phone conversation with the information the police had was that david wilson was driving a p t cruiser which is looks nothing like a pickup and there was never any report that there was ever seen driving anywhere around veterans park so this idea that there could have been this switch somehow is just not bearing out by any of the evidence now also one of the elected used address briefly as well is what  while black charged that as the planes call it and the state is trying to say that the plaintiffs are calling agent lamp a racist and so forth well no we're not saying that he's a racist but it's very very clear i believe from the evidence that really the only characteristic that matched the description of the suspect here in terms of why they decided to stop pick up was that they could see that the driver was dark skinned just like david wilson and i think the case law is clear that skin color is cannot serve as the sole basis to stop a vehicle he could be part of a description can also can it absolutely a part of it he looked like his brother their brothers right they are brothers yes boy that's pretty good don't you think that in terms of looking at you terms you can't tell who's driving in their brothers that well you can tell that's right i mean there are other that's not the weak part of it right and that's not your best point right no no no but it was i believe a cs first identify second type of arrangement here i mean they didn't know who is driving so they just go ahead and stop them i mean you know i think we need more much more evidence than that the clearest violation probably however was after the stop when they decided to do a pat down search of levi's purse and i mean this happened after they found out it wasn't dave who was the person they're looking for i mean there was no reason at all to do a pat down search of levi wills and at that point there was absolutely no evidence of any dangerousness or presence of weapons which is what the standard is in order to do a pat down search in a terry stop from terry versus ohio and in the other cases that that it would have required that suspicion to do a search of the cabin of the truck to correct absolutely i believe that's we don't our cases say in a case like this and maybe judge bennett does this on three and four but don't we say and we've remained of cases where the district judges do not set out the facts they'd be favorable to you don't set yes i would yes yes your honor but i do think this is still adequate i think it's adequate for the court to still affirm i think that and it quit early detailed enough to to show that genuine issues of fact have been generated not including even in their argument they were willing to take the facts as stated by the plaintive you agree then that we have jurisdiction  to keep reciting disputed facts all the time for example i mean you know they take it they try to point to the court that well levi wilson had been known to let his brother  ok thank you for your argument i think the appellant's of use their time if you have something really quick that one of the want to say i'll give you one minute you get one minute actually a case that applied an actual industry injury standard prior to the chapman but in that case in addition to the p t s d there were bruises facial lacerations in the plaintiff was taken to the hospital and the best case on your question about should it have stopped when they didn't when david didn't get out of the car is thomas thomas is the van search where they found it reasonable to go ahead and look beyond what they could see into the