a reasonable fashion i would submit that the finding here as to what was reasonable and the judge made a distinction as to what actually occurred and to reach the subject of the  and there was confusion as to whether in fact there was a threat made from his apartment to begin with that person who made the phone call to the police of the testimony from one of the officers the auster borders that there was confusion from the beginning but what occurred in terms of the information about grind was that it was an african american mr still is is not an shut up and at that point in time he is grabbed and his testimony is that he is drug outside of the apartment at that point in time which does not is completely different than the subjective intent found by  the district court in the third prong after finding in the first prong that there was a constitutional violation and i would submit to you talking about the excessive force part now mister and in terms of looking at it from a legal standpoint if in fact there is a constitutional violation and it was clearly established here then there was not a basis to continue to hold him either and the continuing injury that he actions were or the law was well settled but that there was once again a reasonable mistake that been made by the officers put in finding that and the problem with that type of the alice this is that he looks once again not to what this it seems clear to me that the judge did accept the facts in the light most favorable to mr so which is why i concluded that he very well may have an excessive force claim and that's fourth all of those facts talks about them he says in regular language i'll give him that never the less and it's the never the less parker you have most of your argument right i mean but it seems to me that the court acknowledged the facts as mr silver presented them to the court and he did and that's how he found the constitutional the no correct at two thirty six of the of the record at the top of the page she says the defendant officers could have believed that her eating so long away from the scene even if in doing so so little was to some and drugged out of the apartment if a trier of fact were to believe the two officers little to drag the seventy one year old man out of his apartment and detained in my pushing him chest first against the door for fifteen twenty minutes and he gets somalis facts right but what he what he says the reasonable answer is based upon a fluidity type exception to these types of cases saying that these are serious actions could have been reasonable based upon the fact that this case was very fluid and there could have been changes gates and those type of situations we know that the court has had many situations to look at the situation where somebody has called out and robinson versus a lot of you had a situation where  individual had i killed a dog and and it was supposed to be armed with a shotgun and in fact had made an effort to hunt down another dog and in that particular instance they found that this court found that they were looking at were the types of actions and in that particular case they look to whether in fact ever whites who point guns and individuals whether you have a right to hold an individual in a detention type situation in iran the same which was decided after this the court decided that it had been established you couldn't point a gun at somebody and so that's why they allowed the immunity in that case they said if it is in the future now you're on notice  a gun door's open you've got a question a person before you take steps to make sure that it that it's secure well all the time it's call in arkansas and what occurred here was that you had an individual asleep in his apartment seventy one years old never been in problems life never had any contact with the police suddenly grab him pulled out of his apartment after he attempted to try and talk to him and at that point in time when there is nobody in that apartment he's removed i mean they didn't they didn't question him about whether in fact he had any problems in that evening or or whether there was any concern on his part but what occurred was he is then held in the chain of this testimony is these thrown against the wall at that point in time and now they're trying to say well he was a victim and we were trying to protect him but let me ask you about that he offered some conflicting testimony what do we how we supposed to construe that or how is the district court because he says well they really weren't holding the guns when  he wasn't completely confined because when his false teeth were called out of his mouth he was able to bend over and pick those up and so somehow he was not being completely restrained at that point in time and i think from the testimony of the depositions he wasn't held leave basically that's correct of them the question becomes whether it was reasonable for the officers to know that holding this gentleman sometimes a gunpoint but not certainly the whole time i was in violation of the constitution and i guess i'm having some trouble with that because even under robinson where they had him with a gun it wasn't clear at the time the officers  taking him back in there and putting him down again work out as well as they might have hoped of course but it believe me if they'd left it outside then you'd be telling us that would be it's not rocket science all you have to do are called paramedics if that individual is they want to have him have medical help he didn't want to have something that's correct he was it was described at that point in time but the actions are not reasonable the actions are reasonable by police standards nor the reasonable under the facts of this particular matter he was held outside for the fifteen to twenty minutes without in january and was vegas and even though it's a judge or community it's cold that time of the year he is held outside during that point in time without shoes blankets or any effort to do anything it's only one incident i thought you said they should've kept him out there until the paramedics came well they should have called for the paramedics he was distraught and crying from the very beginning and there could have been efforts made i mean they they have blankets they can do this if he's them the facts that are available to them at that time and one of the facts is that they don't know what's in that apartment other than the man was standing at the door they were supposed to go and then they had a complaint and the person who was calling led them ri south to be removed from his home there's a cli removed from his home so they can do some type of a complete sweep of the premises and i don't believe the constitution allows for that i don't believe that the facts of this case are anywhere close to what the community situation and it went off and whether this was a discretionary act where there was in the serial and there is mention in the briefs about this jim carrey versus nevada gaming control being the controlling authority out of the circuit  obstructing a police officer i believe resisting were held unconstitutional by the ninth circuit so in that instance the os through was making the rounds based upon unconstitutional  statutes and so in that instance they said well it wasn't a situation where he was making a decision that was wrong because he could have believe that the statutes will correct here there is no decided summary judgment on the state law claim space in the dark corner of discretionary immunity that's nevada right statute forty one point zero three two based on the number of cases out of nevada supreme court involving police must miss alleged police misconduct to that statute maturity is one of the cases which the court grants from a judgment to an officer who decided to and cut someone in back who suffer from cerebral palsy because it was discretionary whether handcuffing frontrunner back foster was a case involving alleged inappropriate criminal investigation of abuse and neglect case the best crime court said criminal investigations are inherently discretionary regardless of the fact that there's departmental guidelines on how to carry them out and we ha immunity on false arrest on excessive force but still found the analogous claims of assault and battery and phosphorus to be subject to immunity based on the finding that there was no evidence of bad faith you know would be our submission what we put forth in the briefs your honour's that there's no indication this case that the officers were involved in a ministerial function one for which they did not have personal liberation and judgment particularly this was a time sensitive issue or emergency and there's no evidence of bad faith to support stiction claims that being said no questions on that point the fourth amendment section i mean three theories have two different aspects in this case one involving the initial entry  man suspected of a drug dealer armed with a gun holding least one person if they was in apartment one ten they acted on that information knocked on the door and cleared the apartment there is no indication they used that action to see to conduct some search for contraband go through drawers they simply swept the premises finding no one else inside and determining that there was no evidence the in apartment one ten there after they making contact with dispatch and and was able to resolve the situation finding the nine one one caller and undermining the what he said was the emergency but the main issue for fourth amendment purposes for qualified immunity is that which the officers knew at the time and all the evidence to this they had a fair probability to believe that there was an emergency in that apartment and took prompt and reasonable action when they found out that wasn't there we still might have  emergency in the same building up stairs that's correct and when they swept one ten got back with dispatch the evidence suggests that this isn't this isn't it they were then directed to one thirteen and  went upstairs responded there ended up taking the collar into custody actually based on the facts i don't review those but yes they had an ongoing emergency up until the time they swept and resolving if you upstaters apartment one thirteen the  officers that made entry into that into that apartment without a warrant his so reasonably certainly they had no even if there was confusion ashley apartment i don't think it to that it was inappropriate for this to the sense that the officers could be time he was hurriedly moved out of the way out of the threshold of the door to clear that entryway so they can quickly make entry to get him out of harm's way and they will be officers to make proper sponsor inside the interior department officers he's only able to say that he believes he moved faster than he was able to move independently the way they moved him down outside the doorway he then said he was placed up against the wall his deposition testimony is the only course of his body that struck a wall with his chest and there's no allegation that the injury or two to the chest really forcible strike against the wall the officers and then made entry the other the other aspect i jumped ahead briefly on the force issue is the use of the of the handguns the officers  taking out their handguns when they usually approached apartment because they were informed that there was a person armed inside that micros with post pose a threat both to them and the persons inside the apartment there's no evidence that after logs that the code red was initiated that is they're making it rain department and it was lifted that is the emergency resolved both one ten and one thirteen and seven minutes that was that was the object of evidence of the communication a wall it's not us that's backed and they holding for fifteen minutes that's what they decided might need medical attention your honor that when you look there at the twenty three twenty that's before the officers made entry twenty three twenty two was when you have the code red down there about ten lines further down that's what's the testimony of the officers in the affidavit attached there they initiate the code red shortly before they went inside apartment one chance encounter mr silva what you see there are twenty three twenty is information relayed by the caller to dispatch that she was able to summarize to a certain extent in the computer it's thirteen minutes now thirteen minutes well it's seven minutes if you look at twenty three twenty nine about fifteen lines longer left code red subject fos possible for twenty one egg and i would submit that that's a reference to potential mental illness and i think describes mistrustful of the state of mind was you back inside the apartment when the call for medical help came emergency is resolved within seven minutes that is apartment one thirteen as well then the object of testimony is he was brought inside prior to that seven minute period and that which we have is here is subjective testimony you know in a minute and again the testimony linking the two to any incident this case in fact there's been no medical was no medical records produced a tall and the only place he said he was treated subpoenas were delivered and they had no record of him being treated there so the testimony on so no one other officers get on and say they're going to lunch or what have you and a code red was lifted after they went upstairs to one thirteen resolved the situation up there then we have six minutes later a couple officers remain with mr silver because  situation apologizing to him find it to see if he's ok and they call for medical and then twelve minutes later he insists that he doesn't want medical attention they cancel the paramedics arrival back the could've easily been excessive force claim of the sort but it wasn't and what nevada supreme court did not make that finding what they said is that they handcuff you there in the front of the back was discretionary that's what they that's the point of the law i think it's discretionary the nevada state court said you've got to lay off in law enforcement circumstance but this situation does not change in two thousand and eleven be comes down it talks about constitutional violations or you cannot have constitutional violations i would also point out th today deals with because what they found was once again there was a statute that was unconstitutional has been applied as to the injuries that w