not to evaluate twenty four hindsight and the reason we're doing that is because the plaintiffs have taken some factual discrepancies and elevated them to disputed material facts counsel let me ask you this since the decision below the supreme court decided the case of white versus poly i'm sure you're familiar with it what impact does that have on our deliberations it reemphasizes the court's obligation to  idaho i don't what's the closest appellate case that you can name that would have given your office your client the clear notice that he was violating the constitutional rights of the deceased i don't think there is a clear case and i think there's nothing close that we could find and i'm sure that pelleas would have found something if they could and they highlighted only used to district court case and the district court cases you know with the factions of cases where as you well know the street court has taken i think virtually all of the courts of appeal to task or looking at these actions of too high a level of generality they're saying and the officers law enforcement officers have to have clear notice that what they're doing is a violation of constitutional law and if it's too high a generality eight they don't have that notice it's not fair and therefore we grant qualified immunity which of course is what your client she believed that the lorries definitely would have been stabbed and by mr brown believe that she would have been stabbed as well and the most as testified that there was an imminent threat to deputy borys based on what he observed he saw the kni coming out you saw the blade he described the length of the blade he saw mr brown moving forward and he did he exercise his judgment and a split second to save his colleagues from serious bodily injury i don't there are some the are there are some issues of frac clear even an issue of fact there was one there he could even see these two people the other through officers the he testified he couldn't see them and he marked on a photograph that's in the record you know but what i said he could see he said he could see one of them and one of them said they couldn't see him one of the christian value was behind the wall and yet before he said he could see my hands it's a very close quarters very small space and kristen billion is the one who  testifies based on what she observed mr brown definitely would have stabbed deputy bort borys and probably would have stabbed her so the undisputed facts are pretty clear at their distance estimates that are based on various types of questioning they are from three to eight feet i don't know that there's any case that i'm aware of that says that there's a constitutional distinction between three to five feet and sixty eight feet so it goes t dreadful happens for an officer to act i don't think that a civilian would have to do that i don't think in this case it was on his knees surrounded by officers if i understand it correctly they had been notified by family members that he had been acting strangely and i gather there is a code that notifies the police that a mentally disturbed person is involved is that correct in this case i'm not sure there was a code involved in this case  read your client knew that this person was mentally disturbed they had information he was meant to get certainly knew that why why the reaction to immediately go for a firearm as opposed to say it's  or something like that isn't there any kind of training an officer receives that something other than lethal force is permissible to save and protect one another in a situation yes and when it can be used they will ser out prepared to use it but when mr brown lunged forward with a knife he was switching back to his firearm because he could not  he may have initially had the gun drawn and then he put his gun away then he took out the taser and he was attempting to you two are you pointed at the victim and the victim spotted the the red the red light  brown they talked to him for quite at length of time and so they had they were prepared to use whatever they need to do they know which direction he was going to go and what he was going to do they know if he was going to drop the knives so they're prepared to use less lethal force if it's a if it's misuse was walking down a driveway with a kitchen knife held down and she wasn't threatening anybody that's factually distinguishable from this case where mr brown was lunging forward with a knife and threatening a deputy and according to kristen bell you would have stabbed her or a deadly weapon that doesn't affect what horseman civility to do what they need to do in order to protect someone from serious bodily injury and i take it for your argument for qualified immunity purposes can sell it wasn't before the police officers when this incident occurred the i'm sorry can sell a decision was not at the at the at the ready for these police officers when they went into the house that's true for qualifying you know quote i mean purpose that's true but for a white if this were before us i would want to send it back for trial because it conflicting views got a mentally disturbed man they've been talking to this man he's on the floor on his knees they knew he had a knife they know that from the beginning from the family members i know the police have a very difficult job they're trying to protect the public also themselves they have that right there for the qualified immunity but that make any sense even if even if we are required to give your client qualified immunity doesn't make sense in this case to write this up on the basis that this would be a violation of the scenes constitutional rights but for qualified immunity so that going forward people are on notice you can't do this stuff and and that's part of my argument my are you in favor that he pulled that knife out and lunged forward how quickly did your client shoot this man to death from the time you pulled out the knife it was a matter of seconds because other seconds rice no gosh and yet these other officers have been talking to him for how long moses perception that he was going to stab one of his colleagues he testified he was an imminent threat he saw the knife blade going forward the other deputies both testified they thought they were going to be stabbed those are the undisputed facts the factual discrepancies of distance estimates and being on the knees are are not ignore the undisputed facts which by counsel again qualified immunity aside for a moment if normally what we would do here is have a jury decide this you know the testimonies of the different officers they had different perspectives they did different things and the jury would say you know we believe officer moses or we don't believe option moses we don't have that liberty because of white versus poly and other similar cases but going forward doesn't it make sense to me to make it clear that you look at the totality of the circumstances in terms of viewing the whether knife on the table that is remove them from this person and that beauty moses told them i put through that they do that because they don't want them pulling the knives out and using them he wanted to keep his hands over his head he had four knifes so that they could reach reach him handcuff him and then remove the knife from his pockets for the safety of everyone there be themself going to save any of your it to overcome the qualified immunity which action is provided to law enforcement you need to give us a case that a reasonable officer would have known and that would have indicated clearly in this case to him that what he was doing was well ation of the dissidents constitutional rights what is that case or are those cases the cases that that are relied upon in this case by the appellee uses herrera four let's stop right there so this is a district court decision not in california that doesn't control the officers this court has held previously the district court decisions can give an officer notice it isn't in circumcision it is outside of the state of california but it is part of the body of love this court has recognized as case law that can provide an officer with fair warning as the constitutionality of his actions and one of the f the mother and the social workers police were called to assist in transporting him to the hospital as the officers arrived they were advised of the mental health condition of the deceased they were told that he did not have any access to firearms that he was alone in the house that he posed more of a threat to himself than anybody else had no history of hurting others and had not been taking his medication the officers discussed ways to take him into custody and get him transported to the hospital decided to approach him with a can of pepper spray that was roughly the size of a fire extinguisher as well as a less the officers kick the door in they see him holding a knife holding the knife they back away there in a semi circle in front of his home the plaintiffs in the case of claims that at that time he was approximately ten to fifteen feet from the officers there was unsuccessful he was then pepper sprayed despite having been shot with the bean backgrounds and pepper sprayed he was able to rise up and that's where the versions of events diverged the officers claimed that he was moving towards them with the knife screaming that he was holding it up to his ear like an ice pick and the plaintiffs had presented evidence that showed that he was simply standing in the doorway with a knife raised in the sky what position he was shot several times after that the district court denied summary judgment and also denied qualified immunity  found that based on the factual record before it assuming that the facts reviewed most favorably to the plaintiffs in the case that there was no criminal activity to issue at issue just like we have in this case this is a help call this is what's referred to as a fifty one fifty call an individual who's emotionally distraught or mentally ill needs help and is not committing a crime also important to the district court and that case with severity of the force that was used alternately against the deceit and that was lethal force important also to the district court was that on the plaintiff's version of events there was no considerable threat to the safety of the officers the resistance that lives even had displayed was due entirely to his delusional and you know mentally unwell state as opposed to being an intentional act of resistance there vatican this case of course occurred in san diego is it reasonable to believe that officer moses would have had knowledge of that case and if he did circuit and that is how far out in arkansas district court well that enough there are there are times where that can provide notice but the typical standard is united states supreme court decisions precedents of this court as well as district court decisions within the circuit and  persuasive authority could itself establish a federal right that responded alleges no such consensus exists here there is one out of state be it in circuit district court case constitute a robust consensus of cases of persuading of persuasive for order to know you are a single case we would not be arguing that a single case w as when we get to the issue of the level of generality and that's what the supreme court concerned about is that the average police officer or law enforcement officer has no real way to know whether what he or she does is a violation of the constitutional rights of somebody and i guess what we're dealing with here is how was officer moses to know that what he did was a violation of the constitutional rights of the deceit clearly established washington a constitutional violation in that case there's never going to be a case that's all on all fours with these cases and cases are on all fours or are not you know there's there's very rarely there's going to be a case that involves exactly the same facts as what we have victim of the telling him to get on his knees he told them quote if you go for the knife you will be sharp what he was essentially i mean this is we're not talking about a statement that was made an hour before times he was compliant on his responses at times delayed all of the deputies testified consistently that they believe they weren't getting through to him that he was having a hard time comprehending what they were saying in a hard time expressing himself that afternoon and  as to the first the first command if you go for the night as you will be shot that comes from the testimony of one of three deputies now i don't have any i don't have evidence in the record to dispute that that deputy did not hear that statement but wh can tell the court is that no other deputy testified to that statement being made as to the second statement the don't do it don't do it which comes much closer to the time when mr brown is allegedly reaching for the knife and bringing it forward in front of his body that is a fact that is disputed in this testimony that she was the only person who was talking at that time to mr brown and she certainly didn't testify that she told mr brown don't do it don't do it and that testimony appears in the record your honour's at excerpts of record pages one hundred ninety one ninety one eighty one eighty nine to one ninety bottom of one eighty nine on to the top of one ninety nd those issues are the subject of significant dispute some are under speed it and some of those way and in the plaintiff's favor the severity of the crime the other circumstances that have been committed this is a mentally ill man he hasn't committed any serious crimes any violent crimes he's made a very general threat to hurt someone and perhaps have been acting aggressively but there's no crime in progress when the deputies arrive he's in his own home and nobody has said he has access to any weapons other than dives whether or not this is even an arrest situation to trigger another factor feels that his or her life is threatened it doesn't matter whether a crazy person is doing it or not does it your honor that is that as this court has recognized the issue of mental illness when it's apparent to an officer does inform and officers tactical response and the tactical them so as we analyze not for the qualified immunity purposes but as we analyze whether there's a fourth amendment violation we should in your view take into account the fact that the officers were fully aware of the mental state of this now to see didn't what his mother had said his actions what he said when they spoke to him and should that as a matter of constitutional law b a variant that should be considered yes your honor i believe it should the tactics that officers in play when dealing with individuals such as mr brown are quite different than the tactics they employ when dealing with somebody who is a dangerous violent armed fel n that's a complete distinction between the types of suspects that officers encounter when you have somebody like mr brown who's clearly having an episode of mental illness or emotional disturbance the way that an officer pursues that situation so often will dictate the outcome and when you enter a man's home and you point firearms out and i don't how do you tell who's more dangerous i mean somebody who's mentally disturbed i mean we've we've seen over the last few years mentally disturbed people  and connecticut killed i mean i don't know i don't know i don't know that you could assume that such people are somebodies not mentally disturbed that they're not a danger as much of a danger through killed  curiosity you know as i read a lot of these cases it seems to me that the police officers are not really well trained enough to deal with mentally ill cases people and you dropped the you originally had a  a a claim against the city of san francisco why did you drop it i mean are they probably training police officers to deal with mentally ill people whose deaths could be avoided if they were if these  situations were handled differently it's not my understanding your honor that there was a what would be a mono claim in this case based on the failure to try that was not alleged there was a claim that could have been construed as a direct cl for negligence against the county and supervision and training and that was not pursued at the summary judgment level as there's a california case law indicating that in that situation for negligent supervision for negligent training that there is no direct liability against the municipality in take it honestly well just in view of that this type of argument it would be nice if we could have some clarification on what clearly established law at what level it's clearly established because i haven't read those two cases before and i don't want to have to get all my law appreciate it very much the case just argued is submitted