but the court's permission i would like to his or four minutes from my co counsel survival this case is about a man who was shot in the head and neck six times by a correctional officer using dangerous less lethal munitions proof in a stablish in its affirmative defense of justification when viewing the facts in the light most favorable to mr pfeifer neither the government nor the district court acknowledged the proof furthermore under the standard adopted by this court and smell the bell helicopter textron a summary judgment is only permitted on an affirmative defense when the defense has been proven so convincingly that no reasonable trier of fact could fail to find that offensive been established because the government here cannot prove that it was so reasonable and so necessary to repeatedly target mr favor in the head even after he was down on his hands and knees that a reasonable trier of fact to be compelled to find him justified summary judgment was inappropriate you say that there was evidence events but he was not as he wasn't on his hands and knees the whole time when he was hit my head you're correct your honor he was down for three of the final shots including the shot that damaged his eye and was he on the second floor and were the shots being made from the first floor yes your honor that's our understanding of the case mr pfeifer was attempting to comply with the only order he heard issue during this series of event which was to return to your cell that is what he has consistently testified to and both correctional officers and inmates acknowledge that that was an order that was issued correctional officers also say that they issued orders to get to the ground but mr pfeifer did not hear that order and when are viewing the facts  light most favorable to him he was complying with the only lawful order that he heard issued which was returned to his cell so he had the one flight of steps up to his cell and was removed from the riding area was near no other  inmate or correctional officer was not damaging any prison property and posed no threat to anybody when these six shots hit him as he was already removed from the scenario do you believe that immunity applies to this particular officer your honor our position is that this is not an immunity case this is a justification case so to invoke any sort of immunity here the government has to prove that they were justified in using their force and as we extensively brief in our briefing there are three possible avenues for a legal justification defense under arizona law and no matter which one applies a standard of reasonable necessity applies and under the facts of this case including most importantly the fact that mr pfeifer was down on all fours on his hands and knees when these final three shots were fired when he was already removed from the riot situation i was not a participant but there's no possible way that it can be so reasonable and so necessary  shooting him in the face that the government would be justified particularly at summary judgment imagine that there was i mean this is a chaotic situation there's a riot happening at the time people are running from all sorts of places the officers when the government argue that we're reasonable and trying to control the situation your honor the government appears to be trying to argue that when a riot occurs they are then justified in using any force because as you said it's a chaotic situation however that would essentially grant them blanket immunity here which is not what the statute or arizona law does the government needs to be reasonable and necessary in its use of force throughout the entire situation because here mr pfeifer was again removed from the rioting situation he was complying with a lawful order issued to him by the correctional officers it could not be reasonable and necessary to repeatedly target him particularly at summary judgment when the government has the burden of proof  repeatedly throughout his case when he was appearing pro se acknowledge that the government issued conflicting orders here and his emphasize this in his response to the government's motion for s his motion for reconsideration that this was the issue and that all issues were not adjudicated he was not only alleging that there was a battery but that the government was essentially negligent without using the time since because he is a again a pro se prisoner plaintiff no it was not your honor however because the ninth circuit has a liberal construction standard for both plant complaints and this continuous into the summary judgment stage are we contend that the fact that third cause of action in his complaint omitted the word deliberate and intentional as his other two causes he was attempting to state a negligence claim there and then when he continued to focus on the fact that these conflicting orders were issued and that was the cause of his damages the government and the court should have construed this as a negligence complaint as the government appeared to do so by acknowledging there in their answer that the government was not boots and go down on to the main base main day room floor where the right was shattered when prison officials responded to the riot they had to take into consideration the very real risk that the riot presents to other inmates that it presents to its staff and and also then take into consideration the potential risk of harm that the force that they used to suppress the riot might have with regard to to the inmates  particular individual is on the second floor had he left the first floor as you've indicated he left the first floor but by the time by the time he left the first floor once he was running up the stairs the officers didn't know what he was up to they say there's no way that they can know what's in his mind what they were trying to do was stop the situation as quickly as they could they have to but really have to restore order they have to pause the action because somebody who's running after writing the orders were given and  orders go back to your cells the order was actually the order was going to your cells and the orders were actually go to a cell as well and in fact the plaintiff when he first filed his request for administrative remedy repeatedly characterized the order as a return to a cell this is it that the supplemental expert of record at page one forty one one forty two and one forty four he says that officers enter the unit and instructed inmates quote to either get to a cell or get on the ground and he repeats that exact order over and over throughout his request for administrative remedy it was later that he started characterizing it as a request to go to go to your individual cells which is how he was phrasing it to justify his actions what he was doing was as as he really away from them well the the main the main part of the right was on the first floor by going up the stairs they don't know if he is trying to dispose of contraband get in why the last blow against some inmate that had gone up on the second floor earlier the officers don't know why he's running what they do know is  order for everybody to get to the ground plane if doesn't contest the fact that the order had been given to get to the ground and in fact he simply says he didn't hear the offer they were the one officer explains that he ordered pfeifer to get to the ground but pfeifer says he didn't hear it but you had conflicting orders you had an order to get to the ground and then an order to get to a cell or get to your cell so there you are there were most of the inmates went to the ground and  clearly that other inmate understood just go to a cell finders action of running up the stairs was any equivocal action as whitley the albert recognized although he was running from the main the main focus of the riot in the back of the had his response to that was not to get down on the ground but to turn cover his eye and continue running he then was hit in the back of the hand and his reaction was again to continue running he sees he saw the rubber balls bouncing off of a wall one of them he says hit him in the neck and he then decided perhaps he would get down he wasn't on all fours according to pfeiffer's own statement he was on he had one need darryl as i got down on my knees i think i was on one knee down and one hand down and that's when i got that's when i got hit in the forehead the cheek and the  can't take issue with so these are these are the plaintiff's own words either in his request for administrative remedy or in his deposition transcript at this stage a summary judgment you're out of the only the only facts you have to be determined are the material facts and as long as the material facts demonstrate that the justification applies then the court was justified in granting summary judgment in favor of the defendant the easiest way for us to approach what are undisputed facts is to look at the facts that are presented by the plaintiff himself those are the facts that the plaintiff cannot dispute the plane the plane of can him make a declaration saying i was standing up or i was on i'm on all fours and the pose that he was standing up because the deposition trumps his declaration but it doesn't trump the declaration of other witnesses other witnesses could declare would he was i don't know for your even if you were on all fours the indication is that as he was going down is when he was shot that the time the officers shot at him he was not flat on the ground he's on an upper tier as the officers on the lower tier he's presenting a foreshortened image to the officer and the officer is simply trying to get him to comply the officer is using exactly the amount of force necessary because this amount of force was insufficient to get him to comply at the top of the stairs and as he stirred first started running it was only after a couple of shots that he decided that he would finally get down on the ground and the whole point is they have to freeze the action they have to bring everybody to a stop before somebody can can take one more aggressive action settle one more score against another inmate that's the whole point your honor what i particularly want to touch on if i may is is is this this one point there's there's this disagreement as to whether a r s four zero three which is the justification statute applies to private or public contractors whether it's only for corrections officers it's clear from the language that it doesn't specify it refers to the superintendent of the prison or other prison officials may use force for the preservation of peace to preserve order and prevent the commission of a misdemeanor or felony the language of four zero three doesn't specify private or public even if it was only for public our position is that reading twenty six seventy four of the federal tort claims act allows any law enforcement agency to avail themselves of law enforcement specific privileges because as the sauceda decision cited by plaintiff which was a district court case  d olson did not specifically preclude the use of law enforcement specific deferment of defenses and the language of the statute itself does not preclude these first paragraph if if if we follow also and we interpret we need words to mean what they say then the first paragraph of twenty six seventy four explains the united states will be liable in the same manner to the same extent as a private individual but the third paragraph talks about the fact that the defenses are available united states will be entitled to assert any defense based upon judicial or judicial or legislative immunity which otherwise but it would have been bailable to the employee it doesn't say it's only for defenses that are available to private citizens it's any defense that could be available to the employee so we would maintain that that so say it was decided correctly we would also cite the court to the franco which was a side case again cited by by a llant where the fifth circuit found that although immunity was not available to the united states in an f t c a case they would still be able to avail themselves of the texas statute which forecast case the court weighed in on the in the arizona court weighed in on the instructions that were given and said that a a prisoner would be able he would be entitled to assert self defense once the level of force became that which is is illegal but would mean in violation of the eighth amendment so they're still constrained by the eighth amendment so during the riot they have to be able to exercise the force necessary to quickly restore order but it still has to be for the purpose of restoring order which in this case it was they weren't shooting at pfeiffer for no good reason they were shooting at him because he wasn't flat on the ground which is what the command was and there was no way to tell that he was doing anything other than defying the orders to freeze the action and stop the riot so any your reading of thirty four three two superintendent or  can use any force whatsoever to maintain order or does well so long as it isn't doesn't violate the eighth amendment well the eighth minute would be that would be the level or would be the standard yes that they can violate that's deliberate indifference powers which is really the touchstone for prison riot situations the decisions that they are making on this decision the decision of what force to use and how to deploy the force is a decision that is necessarily made very very quickly under a tremendous amount of pressure and with no opportunity for a second chance for the court first who has the luxury of a second chance because it is it isn't parent apart it is it's an imperative of the prison officials to bring the right to a halt because if they don't a scuffle can quickly become atika or a new mexico state prison or some other horrible violent i please the court my name is katherine underwood and i am a certified boston representative appearing today on behalf of the pallant all right pfeifer honor bottle i would like to make three points the first deals with the government's counsel contention that the survivor was not on all fours the second response of the thirteen for a three two argument and the third distinguishes our case from whitney as your honour's noted there are two witnesses on the record who said that mr pfeiffer was in fact down on all fours governments council makes governments council wants to say that because mr pfeiffer says never said that he was down on all fours that that is somehow relevant however did not know if you made it all the way down on all fours is because he was knocked unconscious by the shot and so he doesn't remember he can't remember because he wasn't conscious for the final shot the second point that i would like to make is that thirteen four three two does involve a reasonable in assess that he standard and the arizona supreme court in state people who work was said that that amount of physical force necessary is the force that is justified and that correctional officers may use also tackle specifically said that no state correctional officer statute me to shima and fisher neither one of them would have allowed a state statute to be invoked by the government on this act you see a case is it your point a messenger would that we have a binding decision by the ninth circuit which says that this arizona statute cannot be applied in a federal tort claim a case and if so what's the name of the case tackle the united states tackle so there were three opinions in tackle judge to seamus said that no state no statute could be invoked in f t ca claims for officers of the government and that common law was the only standard that would apply judge fisher articulated that if there was a more specific federal statute that granted a privilege to her  officials officers that the government could invoke that but that was not at issue that was that's not at issue in our case because we don't have a federal statute we only have a state statute that the government is trying to in