a notice of self defense to this charge and the government filed a motion that limiting asking of the court the district court restrict his defense and after a hearing the court granted that motion what mr cooney first of appeals to this court the court's terminations that he did not meet all elements of a four four part test that is a tad too they justification t defense now although this court has never officially recognized as a justification defense most other circuits have but this court has said that before we even determine whether i'd just pick a sion defense will be recognized  the and that finding was made only heels of recognition that mr cooney was in his home and there was no nothing negligent or reckless about him being there but that even though he was in his home protecting his attempting to protect his rather that again she made a value judgment that he was not entitled to the or not had not met the second element and judge you are least you the author of or participated in six of them that they just acacia defense had not been properly presented to the court and i and i believe this is the time and this is the case where the justification defen e should be determined whether to be reckoned as officially by this court or not i do believe that that it is that it is time to officially recognized and lastly one of the major concerns i have this is just the strictness and the burdensome four four part test have has in general i think it's clear that in heller and mcdonald that the supreme court has recognized that self defense is that is the touch tone and the basis for the second amendment it's they don't say this but it's almost as if they want to the second image should be written to say that everybody has a constitutional right felons don't have a have a lobby or organization to say to to the congress or anybody else we should we should be given some latitude some right to present our self defense claim all these cases that had been decided prior to prior to the day on whether the justification of inches fell on the other circuits have been based upon the common law right of self defense they haven't been based on a constitutional right of self defense and i think that any restriction that is for whether a a defense is a waste of time or has no merit whatsoever i think that i think that is something that the court has a right to do but i think from all the other all the cases that have been cited that that the four part test has been been recognized as being very strict and and the reason and the reason so is because that the court intention is to carry out what the wishes of congress are and that is naturally to lation is a is a strict liability offense that has been has been written then has and they are that the four part test is is a recognition of the requirements of basically that that common law the fences are available to these types really what i wanted to judge your plea the judge to allow the jury to make that decision and that was what i think that's what the judge did the judge made these decisions that he could have done all these things he could have done you could have not been charged with these answers that question i don't believe he could have and one of the things that is that even though they were there were of the two other two other people two women his wife the next door neighbor had tried to break up a bricks that wasn't done and she couldn't of that that could have been done at that time and that mr cooney that the appellant who had waited and not interjected himself in this fight walked outside only at the request of of another person we we think it was the evidence indicates it was probably your brother's wife said come get the guardian come get it now and indicating everything was involved in a weaponless fight with the teenager he threatened the teenager and then discharge the firearm in the city limits and this case defenses are used that this court should recognize justification that defense and i don't believe that that is necessary in this case because the defendant failed to prove that he met that required elements of the justification defense in the district court did not abuse its discretion in finding that the  granted additionally defense counsel's argue that there should be a new less restrictive test put in place and i also disagree with that assertion and think that their current precedent for having the court from doing so in particular  involved in that i can't speak to that first of all the defendant in this case has been constructive possession of the gun which he would not have been entitled to be in constructive possession of that gun in many of the cases in which the court has recognized that a convicted felon may take possession of a gun the  of the the people who testified before the court there's no doubt his brother was not a very good shape or to be severed from hartford he had had previous heart attacks and that was in the record yes your honor he was about fifty years old at the time had previously suffered from various physical ailments however there is evidence in the record also that the defendant's brother initiated the contact the first contact when he pushed his own daughter or his own stepdaughter into van and so that's another issue that we have here in discussing whether this defense of others test or the other should be allowed in this case in particular because there is some evidence the record that the person to m sought to protect was in fact the aggressor in addition to that mr kearney at the time he discharged the firearm i think the record is clear that both mr a vance and warren county were standing and therefore could not reach any bricks to use as weapons fight well as i remember the facts when was not directed as to where the gun was located that's correct your honor it indication is that he knew where exactly where the gun was located the gun was in the house was there was a problem with that from the standpoint of conditions of release your honor and in the government that aspect played into this in the government's be arming the district court did comment on that fact that there was some indication that he might have been in constructive possession of that firearm i think if he was deemed in constructive possession of the firearm before any imminent threat of rose then he doesn't meet the first prong because at the time because at the time he comes into constructive possession of the gun there is no imminent threat if he knows where the gun is he had access to it clearly no one had to tell him where to go get it and so that the district court did make a comment in that regard that there would be an issue as to the constructive possession and i think correctly so and i think when the court considers that fact because the defendant w police he chose not to do so and or stay in the courts concerned with the bricks playing around but the district court found that there is no convincing evidence that anyone attempted to use the bricks as a weapon and so that something that i think is of importan because the district court had the opportunity to observe the credibility of the witnesses and i would also point out that no one mentioned the bricks until we get to the point where there is an issue regarding self defense and that that's an important factor whenever we consider the credibility of the witnesses and whether in fact anyone was actually concerned that the bricks would be east regardless of that as the court is noted people could have moved the bricks out of the way or there are six people there there's other reasonable legal alternative were six people could have to work together to break this fight up where the defendant didn't have to take possession of a firearm he could have used another weapon to break this fight up if he felt that that was necessary and in any event i think that the foreseen used here was excessive and that was why the government are you that the district court level that the fourth problem with the test wasn't met either because the force was excessive i think there's a case of the fifth circuit united states versus gant where that was one of the factors the court considered in determining that the fourth problem was and that is because the defendant escalated the situation back bringing a firearm into it and here that's exactly what the defendant did there is no weapon involved until the defendant brought one into it it wasn't necessary to but to you and forces with a vengeance really some of the kit rereading some of the cases of sort of the guys for the person try to hide the gun to keep it away from his children but that won't fly well and has nothing to sense of the word that you want going for that he doesn't have an it's not one of the people he conceded that he is not one of the people that you may see in as applied challenge where you have a person that might be findings i don't think that there is any inconsistency in the district court court's findings and i think that in other cases that the circuits have considered whenever they have considered whether or not this defense applies that times they do find that there is an imminent threat but that the defendant could have taken reasonable legal alternatives in writing himself of the danger and so i don't think that those are inconsistent in any way and  circuit case out of two thousand and six so i think that forecloses the argument that command of the language in bailey that this other reasonable legal alternative element has to be there and any justification offense bailey states that imposed in states that in the in the event this court were to adopt a justification defense in the circuit that that part test to be used and so i think defendant's arguments regarding some other alternative tests are foreclosed with regard to with regard to the court his brother was in danger of death or serious bodily injury he would have said that and i think that is one aspect of a lot of the district court pointed that out although the district where did the make the founding contrary to that  that there was an imminent threat  with regard to second prong that the defendant recklessly or negligently placed himself in the situation there are multiple cases out of the circuit where it's very clear that if you interject yourself into an altercation where it's not necessary  then then you're not entitled to this defense and particularly in that element in there they circuit discussed the fact that the defendant in that case should have called the police and the fact the defendant had no need to  inside his house if he had done that he wouldn't be in this position but he didn't he chose to go retrieve a firearm that he had access to it was in constructive possession of already and then he went and he went out he threatened a teenager with the individual that's fighting here is not was nineteen years old at the time fighting a grown man and the district court was in a position to see the size of these individuals the district court while the teenager may have been winning  jury not in this case your honor because i don't believe it's just spewed it in fact the defendant and meant it that he could have called the police and not and therefore there is no basis for finding otherwise in addition to that there was no basis for finding that he couldn't be used another weapon aside from a firearm and whenever there is no underlying evidentiary foundation to support one of these elements the district court is in a position to say that there is no way a reasonable jury could make this finding and therefore there is no here are again that the court did not abuse its discretion in finding that the defendant failed to meet these this for protest this four prong test if the court were to decide that just cation offense were appropriate this for protest is the appropriate test under current precedent and this court may not decide the issue though as to whether justification defense applies in the circuit because the defendant has failed to meet his burden in the case and i would respectfully request that the court affirm the judgment of the district court room can't plead self defense to a constructive possession charge and they didn't do that until we got to the hearing face of it so i asked the met that not that not be the basis of the or the government not and not be the basis of the government's argument or should not be a raise that issue because because it seems to me that it may be relevant to this element about whether the appellant recklessly or negligent lee placed himself in a situation in which it was probable that he would be forced to commit this this act by living in a house where there's a firearm and he knows where and he knows where he is it seems to me that at least has some some relevancy to to his own culpability if you will and placing himself in this situation where  we've got an emergency situation and here's an available handgun and i think there is some dispute to whether he was immediately aware always aware of other than before that time and that's why a jury should at least been able to decide that and that that's all he's asking for is a trial he's not he doesn't it was undisputed that when he was told about the fight and he was told to go get the gun and he just went and got it there was no he knew is there some is there some testimony that he didn't know where it was he had to be towed i don't judge no i don't think that was developed it was the gun was on the awning board where i think testimony was it has been placed there the through the jury and i which i don't think i think because it is now a constitutional right to plead self defense that he should be given that jury right thing and we think both sides of the argument the case is submitted we will take it under consideration