idle dangerous because everything they're all considered armed and dangerous well your honor at the district court made a finding that the department pasta fied him as armed and dangerous and that the deputies were searching the backyard with their guns drawn as they believed him to be armed and dangerous and so i would respect with them it from the viewpoint of these defendant officers who were assisting on the day of the incident they had reason to believe that the suspect was considered  dangerous i would submit that the defendants should have been entitled to qualified immunity from the plaintiff's fourth amendment warrantless search and not going to announce claims based on four separate grounds each of which is sufficient to overturn the verdict and i would like to spend some time addressing each of those grounds today first the defendants are entitled to qualified immunity as a reasonable officer and their position could have failed to recognise that the shed was actually the plaintiff home that they were currently living on living in based on the appearance of the shed and the parents of the back to work with they were told otherwise correct your honor the district court made a finding that during the the previous deputy recently advised that a male and a female lived in the back yard however the defendant officers both testified that when they lives in the backyard they did not view that shelves as a habitable residence the district court made a finding that the defendants mistakenly believe that that shed was a storage shed just  similar to the other three sheds in the area and that the only person that could be hiding there was the felony suspect at large now that mistake of fact was reasonable qualified immunity should apply and i would submit plants were residing one reasonable officer could have either fail to realize that that was the shed in which the plants were living or a reasonable officer could have believed that if that had some point then where the plaintiffs were saying that it was of the home the officers could mistakenly believe that no one was living there anymore what difference does it make of it it was living there i'm sorry what exact difference does it make nobody was living there do they have any right to go in any way if if the property is considered abandoned there's no fourth amendment protection everything was on somebodies courland well if the officers are supposed to have understood that that was a separate dwelling  you just said they shouldn't have understood that so then if they thought it was a shed remain healthy for the economy right to go in it if they thought it was a shot in which no one was living in i think they had a right to clear were if they did not believe that anyone was living there or that no one was living there still there would be a reasonable officer could have believed that it was proper and not unlawful to enter the shad without a warrant and without the first the first reason i think they have our entitled to qualified immunity is because it doesn't look like an actual home which we said i want to know why that makes a difference because if it's not a home office those aren't required to get a search warrant to clear the area and they're not and they're still somebody's property oh well the the the the district court made a finding that there was probable cause to search what does it mean to say he was seen riding a bike in front of the house was a pro he was in the house well i think a reasonable isis or would be entitled to qualified immunity if they were told that the actual suspect was riding a bike in from the house and there was the bike in fro bike past the house so anytime you see a bike that's in front of a house and somebody is riding the bike past the house that means he's in the house well i think as a person see why the bypass i have is in the house well i think what we're talking about is of persons in my house well the defendant can probably or even possibly the defendants were part of the community oriented police team who are assigned to assess the sergeant who was on the top team that tracked  large and as the team arrived the sergeant dispersed the office of our defendant officers who was only it's only their viewpoint that we're concerned with he discursive the defendant officers to the back yard for containment and to clear the area as the sergeant went to the front area now before searching the set said our defendant officer scott the sergeant in the house and therefore they would believe they would a reason why officer in their position would believe that the sergeant gained lawful entry to the home whether by consent or by accident circus and facets to our officers saw through the back door that the other team of officers were inside of the house so our officers i was offended some this case would reasonably believe that the sergeants team the other the three that went to the front door either had consent exigent circumstances or a lot of means to enter the residents and then they were tasked with clearing the backyard so i would submit that from their point of view  circumstances existed to believe that they needed to clear the entire yard for officer said officer while we're at engine circumstances because this is a very unique situation where you have a shed with in our officers had a reason to believe that this felony suspect was armed and dangerous any time there's a somebody they think the armed and dangerous in the house they can go in the house i'm talking about into the shed right now well our obvious first have to establish he could have been gone in the house well that's why i think it's important i'd like to stress to the panel is that our officers went to the backyard were assigned to go to the back yard while they were searching the backyard they looked and saw through the house that the other officers were in the home so they would have believed that those other officers had a lawful means to enter the house whether by exigent circumstances or consent and so therefore there would be a reason for them to i and would respectfully submit that that is warranted as a protective sweep and furthermore i would really like to stress to the court that the officer should also be entitled to qualified immunity because the district court applied the force by a provocation doctrine in a novel manner in this case and not in the traditional manner that it normally applies the officers conduct did not provoke a violent i understand that your honor i but from the viewpoint of the officer to provoke a response it was compatible all comparable to escalating the situation now in this and these tents and evolving circumstances because at the moment he peered in the shed the gun was pointed at him in duran first the city of maywood the quite stated that for the forest by provocation there each apply there must be evidence to show that the officer actions were excessive and that these actions caused an escalation so the normal circumstances in which this force by provocation theory has been applied is where the officers conduct is escalating a situation and that door right that's what we're assuming at this point in the argument then the the in essence they did provoke what happened in the sense that because somebody was coming in this guy got up and had his gun descent i would submit that the law is not clearly established that provoke could be used in that manner under the law and then existing case law damage is implied in this case or as as i'm sure the court of the where the force by provocation doctrine is heavily criticized by the other circuits because for should be measured by the time and the circumstances that the  exerted now the ninth circuit allows damages to piggyback on from the first if the predicate constitutional violation was intentionally and recklessly cast however the law is not totally established and there's certainly no the moment deputy it calmly was peering in the playtest was moving his b b gun rifle because he thought the homeowner there was there to play a joke on him so the first by provocation doctrine is not meant to apply in those types of situations understand what you're korea saying is that his acts precipitated a response but the law is not clearly established at the doctorin which is heavily criticized here out of touch ok which is i have a precise as should be allowed to you  analysis and i believe that the court the district court properly held that all of the criteria for the alexander standard as interpreted by building  and glahn and all of the progeny of billington that the court properly applied that because the conduct of the officers were intentional reckless and created the circumstances created the violent confrontation and the qualified immunity it seems to me that this issue the billington issue is really a causation question about damages and it's not really a question of what the the what the officer should have done i mean it's not it doesn't deal with their their behavior it's not that they that's the whole point of it isn't that there was anything wrong with their behavior at the time they shot him the question is whether they should be responsible for the consequences of opening the door which is not a qualify of these the question is my hundley my own interpretation is that what this court has been striving to do is put certain limits on qualified immunity because in circumstances were otherwise the shooting would be justified in the district court found that here that the circumstances leading up to it are sort of a reason objective legal and reasonable from a fourth amendment standpoint and that's what the billington analysis says so i think it goes beyond causation i think this is a way to say that even if officers are going about the actual shooting the moment of shooting even if that's ok under an analysis of the justification because they thought they were in danger at that moment it's everything leading up to it and i want to go back to what your honor had said about probable cause in the first place the member had probable cause to believe that this person ever resided there this wanted there i mean that's that's conceded as i understand the question is whether they had probable cause to think it was in there there was and they raided two places the officers and during the briefing very very specifically deputy rist ling said that the members live this probable cause is an objective standard i don't i don't really understand all your emphasis on this other house i mean it goes to their motives their freedom i know you've got a lot of time that your brief and all of that might be true but it doesn't really help on the legal well i think when you focus on whether they never had probable cause in the beginning to believe that he was present at the house that he lived at the house and your honor pointed out a bicycle there a different bias that well and we try what right that was someone else particular time it was just as reasonable to believe that they wanted to toss what they believed were two dope houses that's what they wanted to do they didn't have probable cause to believe this useful to the legal arguments well whether it is or not the on your honor if they character tour of armed and dangerous which is tagged on every parolee that is out there even assuming that is that he's not if they have no evidence or probable cause that he's in that house that he resides or or that he's running through the house and your honor the game is over at that point because they're told by the informant allegedly they're here ready to left the house it wasn't that he was riding the bicycle in front of the house or parked the bike he had already left so with that information that was the record on that i know that minster stated in the recorded this was part of his statement that the information that was received from the import informant allegedly through the deputy receiving when she called this informant and again that probably was this charlie green who was in the same place at the same time watching was very clearly quote the parolee had left the hughes house on a bicycle he had already left that is in evidence that was both shown in the actual bureau of investigation statements as as well as officer sergeant minster testified at trial so very clearly there he was not he had left if there if there was a person on his on a bike he had left that person had left was not a threat to anyone there were no exigent circumstances but your honor going back to what you said about the causation what it really comes down to is once the officers know that mr o really is not in house he's not running in the house he's not running from the house and the two deputies who went around the side gate and access the yard and then they communicate with sergeant minster at that point they know there is no person running from the house there's no person in the house and what the u s district court judge sees the pond was at the moment that we're looking at the mendez shack knowing it's totally different than the other shacks this is something i house that has clearly there's evidence of people living there is there's wardrobes there's dressers outsize there's this is not just debris strewn it looked judge the district court judge looked at each photograph and said it's clear people living there and they knew it so where's the exigent circumstances where is the reason to give them any qualified immunity it subjectively their officers are acting under reasonably and they're charging towards this shack when there's no and they were asked t trial the judge interjected and said well did you believe that armed and dangerous parolee was in that shack that you approached no did you feel this is that what they said or did they say they said they didn't carry danger but i did think they said they didn't think it was an issue at the absolutely chris conley's testified but it's one of the benefits of having been the trial attorney and then argue the appeal yes the connally said he did not believe that the person was in the shed that there was anybody that on reasonably and growing up to what was his explanation they offered it and in my recollection of the evidence they didn't offer any good reason they were just certain they went back there to search an additional housing unit that they saw this dwelling and they shouldn't have then there was no group good reason to do we know there were no exigent circumstances and that's what the u s district court properly seized on when they were standing there there's no reason they couldn't  gotten a warrant there was no way to escape if someone is living in a seven by seven shack that has absolutely no other escape there's one door in the front and there and there's a curtain in front of it and these officers knew that they could have observed it they could've knocked a notice they could have called for backup there were dozens of officers in that area circling both from the other house raided as well as posted in the front of the house the premise of this record although somewhat in passing and somewhat contradicted by other statements he made was that there was probable cause to think that guy was in the house he did say that at one point and then he said that i don't need to focus on what happened in hugh's house because believe that the wanted parolee may have been in the house but not in the shack especially given the officers testimony that they didn't believe he was there so at that moment they go with there is no valid consent to be there to begin with there is a warrantless search and as as the judge said the district court judge said we have no exigent circumstances here why they can't get a warrant all the wind of cases that talk about search and all the cases that talk about qualified immunity really all hinge on reasonable conduct is that often are the officers acting reasonably here the court found that it was unreasonable for them to believe that  such schools yes i'd like to interject a question of course could you please address appellants argument that this case represents an extension of the first five provocation and i  believe it extended it involves an extension i believe it's consistent with billing ten and duran espinosa in your honor in espinosa the court found there was no warrant there was no lead to gin circumstances there was no consent to enter what they believe was a drug house or a drug apartment in that case and and the individual who was hiding in the attic he said ok coming get me or kill or be killed and they shot him in that case they felt that this is your ninth circuit found that this is something that again consistent with billington which is really a refined min of the alexander standard because that was the first case that found were officers negligently get themselves in a dangerous condition assess a dating force and that was under the guise of service of a health department warrant so it's not an extension in it's really simply a refinement or definition of this alexander standard that we know would have to have excessive unreasonable conduct and we judge it on a reasonable standard intentional or reckless based on the fourth amendment reasonable standard so i think really your honor is what we're looking at is if the conduct is so unreasonable and then is intentional or reckless and that in the of itself is a provocative predicate constitutional violation it's not an extension of billington it's exactly what billington and its progeny hold that if you officers create a situation and they did where there was a violent confrontation and they need to use excessive or least lethal force then we've established the billington elements and that's clear in espinosa sing clear clear in the more recent glen case which involved this year old who has had a pocket knife on the driveway said he was going to kill themselves and they shot him full of bean bags and he takes a line of escape and they shoot him because he's in in front of them but it was the shooting of his of beanbags that escalated the situation was confrontation this is no more an extension of billington then espinosa and glenn it gives the same criteria the same unreasonable conduct the same ease their intentional or recklessness leading up to a violent confrontation there's no question that the officers in their recklessness caused the violent confrontation that led to very very serious catastrophic injuries thank you  this cantrell's argument that is it as it relates to the two officers in the backyard they were dispatched to search the backyard and that they should reasonably be found to have assumed checked in with sergeant minster and at that point sergeant minster and the other officers knew that there was no person running from the house there was no person in the house so really it cuts off where they may have believed at some point that they had access or they could have fixed access to side yard once the know that the wanted parolee was not there not running there's no webpage in circumstances and they were told that these people the members are living in the  everything from that point is doing what we do don't get to go there they don't get to go in without knock and notice they don't get to do it without a warrant all they had to do was surrounded shit the shack the dwelling of the mendez's and say come out with your hands up if you're in there or say we're going to bring other officers here for support they were abandoned be it the vehicles as counsel pointed out they could have taken cover they could have waited there was murder every chance he so even if you're honest correct at some point maybe their conduct and i think the u s district court judge strieber this a bit saying well maybe they had a right to do there but they but at some point that right is what when there is no leverage in circumstances and no reason not to get a war and so i think that's why we have billington and that's why we have it i guess my time is up but it will be have to dress and i question  say is that under the qualified immunity doctrine an officer needs to be on fair notice they're fair probability that what is he is doing he could be civilly liable for in a court of law later these officers at the they they know their own actions to be opening a door to a shack in a backyard whether they were not of the door would have been influenced by the fact that they if somebody were in their home pointed a gun at them they might shoot him because at th situation and glen which is decided after this case in any event the officers are escalating the situation in your rant escalating situation although they're not all that all the know it that they're doing in their own head is opening the door did why they say someone should say what you did and i also wanted to say  honor is that the district court judge felt that there was probable cause another so even if there wasn't a reason why officer like the district court judge could have made this mistake one officer could have mistakenly believed that probable cause as evidence