venice sorry did i get that reversed through the lens of clearly established law now to be clear sheriff innocent is consistently argued and still maintains that spencer can't establish that any of the constitutional rights were violated and that summary judgment is inappropriate in this case and party but  constitutional claims on the merits but then declines to address the question whether there was clearly established law if if we agree with you that the district court erred in its framing of the discretionary authority analysis  fifty nine there is precedent that allows this court to reverse it and now qualify immunity based on chara determination that they weren't act that he was acting within the scope of this discussion authority and they go further and actually support of an issue i think one of the issues here is that the discretionary function immunity here does not really arise from necessarily the same kind of the legal issue here is that the district court in spencer look to conduct in the wrong analysis because they went to the substance of what sheriff innocent was been done instead of looking at his general duties i don't really think kids this is judging this and you take judge baker's point i think i mean so if i understand your argument to be that the district courts analysis within the employee's cover sponsibility i take your point but judge baker i guess is asking you without reference to alabama law how do we know whether this was of a type that they felt within the employee's job or can we just take  that sort of thing so i would i would say that that the specific authority issue is not one of we didn't raise the issue if that was cited additional authority that this court certainly could take if you want to frame mr dish will notice of or you know just go under the rule of it's additional authority either way that that that that issue is properly preserving the right but you do decide you that it would be more appropriate to do it as an issue of st impression because this really is i mean the scope of his authority this really is a question of well it's a question of well established law do i mean there's there's not really an issue about client will say that you know this was a long order issue blocking traffic we had traffic blocked i needed him to move the cones in the bulldozer and everything of that nature mr spencer w say no this was all the cones and everything was on my property here's what i just want to clarify this at the heart of this is a boundary dispute between mr spencer and the casino minister spencer says no no no these items the cones the bulldozers everything that was on my product property were those items on what everybody thinks this is private property or were those items on the sort of forget about the boundary dispute for a moment forget about the scope of the event for the moment they were all and they were impeding the road that the casino had built and that was what gave rise to the public safety risk that was what gave rise to the public safety risk the other issue and this is something that is said very specifically in the recording and reflect in the record is that the reason the sheriff was there was because going out there that day was to and he did he got mr cockrell and self on what assured him of course didn't end up happening but had assured him that they were going to go to civil court they were going to finish the speech and then so that was his main five years the council what about the fact that we've got a back up on the highway related to the target we just figured that you dispute that there were any cars backed up on the highway yes ma'am look you know this is a private dispute the courts are involved you're going you know you're going to go i think maybe you had told him that you were going to the circuit court to get it squared away i mean it seems to me that this was just sort of a stopgap measure he's not trying to sort of permanently take your properties just trying to ease the tension provide a sort of a short term solution pending your resolution of this issue in state court what happened to that state court litigation paving of the road and when he only directed a stop gap measure to address the issue that your client called him out there to address where younger he couldn't that could complete the all my customers decide this is just an estimate just branches point i mean i don't want to oversimplify it but if the bankruptcy order is as clear as you say wouldn't have been a simple thing for you to just go to the circuit court present the bankruptcy court property line maybe he should have done one thing on the of them but don't we take it the state that a general and general swipe that he was out there trying to enforce a court order that's what your client called him out there to do  right at that point what the sheriff was looking at was a repeated misuse of emergency services when he had been told you know before stop doing this this isn't us stop calling us so the share point out there that day now i don't know you know why our water who or whatever change mr cockles mind about there being no reason to try to get an injunction but the fact of the matter is that on we don't care i don't agree i don't care about the boundary dispute and the substance of the boundary dispute the fact is that is that if it were so clear one would have thought frankly that they would have filed a summary judgment on that point in the district court and they did in the boundary to see you know i'm not sure of all of the litigation that's gone on but the battery speech is still was before the district court even so if it were that clear then why would you have done but the the larger point really are larger legal point all of that all of the substance of where the car backing up you know was what were the sheriff's motives what to decide was the on none of that really appropriate at this stage at the discretionary function what you look at the discretionary function analysis or whether the actions are of the type that fell within the employee's job responsibilities and here you're looking at that the sheriff responded to a n eleven call and took action to try to preserve the peace and stop this cycle and those are clearly actions of a type that fell within the employees within his job responsibilities under nine am tomorrow morning