appeal is with respect to officer turner who was involved in an incident relating to that student death of my client in lincoln's father and officer turner is the officer that there were various police agencies involved but at the time we are we're from a with a faction we've read the briefs you can refer to the facts as you go for your argument but we don't need the whole case i think your honor officer turner is the one that at the time that as soon is john lincoln was shot and fell to the ground his daughter erin was standing right next to him she fell to the ground you know crying out for a father officer turn he came in and he's the one that and have to her servant shoulder carried her out and then detain or in the back of the place car and the district court made a finding that we failed to state a claim and that that fan in favor of coffee munity i didn't really understand the district court's opinion because it stated that we failed to a ege any oral or verbal or physical contact between turner and aaron and but we specifically stated that he had and kept her thrown of a shoulder taken at the back there over a fence so is the problem that we're in such a preliminary stage we really don't even know officer turner's version of what happened that is part of the problem is that we were we have not had an opportunity to take  deposition or a number of depositions or obtained you know that in the discovery phase but based upon the pleadings and the our version of events then you have someone who was not struggling wasn't suspected in a crime like to me wasn't interfering with the officers was doing nothing other than anguishing about her father's death and who was then and kept in and thrown over shoulder i don't think that to me the court the question is the qualified immunity i i personally without of course having speaking bring one else i think you have stated a claim the question is the qualified immunity and so big supreme court has said time and time and again you can't do that in a high degree of generality you can't just say well the constitution forbids excessive force the constitution forbids seizure and detention without you know probable cause or at least on a terry stop or reasonable suspicion those are all things we all are very well aware of supreme court to set a high degree of generality which that isn't good enough so what cases would you rely upon as establishing the clearly established law that would have put obvious or turner on notice that what he was doing under the facts as you clean them violate the constitution i would say that doesn't waivers in new york in the davis case both of which were cited by the fifth circuit in the companion case against ranger bonds in this lawsuit and said that those two cases reflected clearly established law at the time of this event  fourth or are you saying that since the detention was unreasonable any force would be a reason yes because i believe that the case law holds that the that the force has to be justified inception in other words at the time that he encounters her it has to be justified and i think that those cases establish that because if you obviously if you can't detain someone you can't use force on them if there's no right so it's our position that that was clearly established at the time and that officer turner should have known that and that there was no justification for any of the actions that he took so  don't believe that there is any evidence of that would justify the conduct on his part they that they're briefing in the briefing they claim that he needed to take those actions to quote secur i'm but i think that that is sort of misleading for a number of reasons certainly we don't contest that the officers needed to secure the scene it was a shooting death it was a rapidly evolving situation there was a lot of unknowns involved they did know that their lincoln was there they did know that she was not posing a threat they didn't know that she was not a hostage they had all of that information at the time and she you know this is a young girl in her pajamas i mean  clearly wasn't posing a threat didn't have any weapons was was not taking any action against the officers at the time she was basically laying there crying over the death of her father so even if it was necessary to secure the scene it wasn't record that's your problem on the second prong of qualified immunity in other words ultimately we might say that was a constitutional violation but you know how the qualified immunity  analysis work yes sir i do believe that it was clearly established law at the time that force cannot be used if there's new probable cause to take someone into custody and i  mean i think that those are those same cases establish that that if you can't if there's not probable cause to detain someone then certainly you can't use force to do that because you can't detain them in the first place so there's no reason to detain  lincoln then he can't use you don't wish to the officer would think they could just walk up to somebody on the street grab him put him in handcuffs throw her over their back and throw him in a police car yes without anything other facts yes if there's no other  is a clear a clearly known to any reason no one no reasonable officer would would think to the contrary certainly and i think that the doubt here you know the argument is that even under the facts as you put them and i realize we don't have much factual development you don't just have somebody walking down the street the police officer just throwing him in the police car you have this very charged swat situation with and i'm not sure where the gun is at this point that the that the dad had and so on and you have the daughter in in a state of panic and shock and whatever you've got to secure the scene now what law would put officer on notice that he can't remove even if she's just a witness and has no involvement in this so called larger crime that i'm going to ask your posing counsel about but it she's just a witness just lost her father all of that which is obviously terrible why can't the officer secure the scene by getting her out of there come on let's get out of here i think the difference is and i think that the denon way the davis case is established there is a distinction between securing a scene in detaining an individual who's a witness securing a c involves making sure that you know i think that if there was suspicion or cause to believe that she had a weapon does it do they need that i mean we've just had so we've got a swat team we've got the dad came out with the gun they shot him for you know rightly or wrongly they've shot him now he's down she's screaming she's down we don't know at that point whether she has a gun or not when they at least be justified to terry stop kind of thing to make sure you know the dad had a gun that the daughter doesn't because you have a swat team out there and if she's decisive she's so enraged about her father being killed it would be that shocking would be wrong it would be that shocking verdes get up and start shooting her dad's just been killed i think that that that's not what happened but i think that that would there could be a reasonable argument to be made that that could be part of securing the scene to make sure that she also did not have any weapons  i think that a reasonable argument to be made in that regard that that's part of securing the scene but that's not what happened and they they went a lot further than that officer turner went a lot further than that he didn't f did he didn't have her throw her over shoulder and use force on her and take in taking her removing her alphabet you're putting your offense detain him in the back of the police car so he went way further than what was necessary to of that so that's the piece where i think judge smith was asking you know where do we have a case and i think your argument is no force could be used but then we have this issue of well some kind of teary stop seems appropriate into the circumstances again it's a very charge situation has just been a shooting justified or not there's a distraught daughter who may have a weapon we don't know what she'll do and so officers are at risk right now and so that's part of the whole qualified immunity and  limits on what he can do at that point i think the case law establishes that the limits are he can take steps to ascertain whether there is probable cause a reasonable suspicion of any criminal activity on her part frisk her you know ask her questions something at the scene to make that determination but acting without making that determination i think that the case to say you you can't do that you have to have a basis for the conduct  i think it's the incumbent on the officer to make that determination to ascertain what is necessary and on his part with respect to what her conduct is so without doing that and without having any knowledge that she is engaging in been any criminal activity he takes action so there's no basis for the action it goes beyond securing the scene or ascertaining whether she poses a threat or a danger because he had it is rapidly evolving it is tense but once he once he can ascertain that she does not pose a threat or danger then that that is what determines that you can't take further action and i believe that that was clearly established that the officers have to make that determination they have to have something a basis upon which to act so i they're not for the questions will please the court counsel in my review in preparation for today i represent officer turner who's a police officer for the city of teller one of many that was called the home on that day in question december twenty sixth of two thousand and thirteen the plaintiffs brought this lawsuit initially with kathleen lincoln and john lincoln who have been dismissed and their appeal was recently dismissed and miscarrying link in islam when that continues on and this is a case under the fourth amendment that deals with the seizure and it deals with the force as well as a qualified immunity i've heard the questions of and justice haynes with regard to the actions of officer turner in what was known in this particular setting what is required in the pleadings is not so much officer turner's explanation as it is the plaintiffs the complain understanding of the facts and recitation of the facts to a specific extent that overcomes the qualified immunity defenses there has been a number of cases that have gone before this very circuit in the united states supreme court that deal with those particular pleadings that have to be raised well and amongst recent on came from and on top decision of our court when it is versus mesa and they said that as far as qualified immunity goes you have to go based on what the officer knew so in that case the officer would have had no way of knowing that the child is shooting at a young teen or whatever his age was was not s citizen or having a connection to the u s and therefore that couldn't be a factor that's considered in the immunity analysis so here you all make this huge deal about aaron told dad not to answer the phone which even answer the phone anyway and consider that that's a justification for the whole series of events but there's nothing to suggest that officer turner knew that could have known that would have known that did know that and therefore under hernandez we can't consider that in the analysis of coal fired woman in the car and left with that said no one how would anyone know so the phone rings and i say judge smith don't answer that we're in a conference room and then he doesn't answer it how would anyone outside their con what i told him were the two of us sitting there and he answers the phone even though i say i don't think you should answer it that's what she says happened there's no indication any officer knew that so that as a theory of justification  for throwing her over the shoulder and all that is wiped out by her name is be nice as far as i'm concerned but you can tell me how i'm wrong will your honor i don't know if you're wrong or not i just don't i just know that that does not limit what the officer has to do in the immunity that the officer enjoys because this is a situation where those responding officers they don't know what's going on those responding officers don't know how much or how little she has participated if she's an accomplice or not or if she's a hostage in a victim they don't know they see her at the door with their father they understand that she says that she's not in danger they understand that she said she's trying to cal her father dana we've gotten a report from another officer a family member who has said this man is a threat and a danger to himself and others ok so you weren't called investigate some drug house or some large criminal enterprise because there's a man with mental issues reza gun and his daughter have to be police officers concerned everybody told you all he's not going to hurt his daughter erin but either way you are in investigating some big criminal enterprise you're going in to address this man who's got a mental problem and he's got a gun which is a dangerous situation i'll give you that but you guys keep talking about this larger scheme what is this scheme  and that's the problem that we face and we're not told by everybody that this man is just mental in a danger to just him self or others we don't know what the man is into we don't know what is daughter who eventually is brought up that she has some issues as well we don't know what their status is ok so you frisk her i think you should frisk her but how does this justify there's no indication if we're taking the pleadings it's true there's no indication anyone told  ma'am get up step aside we're going to have to frisk you and she would refuse there's no allegation anywhere of noncompliance because we're just going on the pleadings if she didn't comply resisted all of that we're in a different category but there's it and we can't decide those facts because what we have is her complaint that she's on the ground and she's compliant the district court said she was not comply but there's no allegation of that with my my complaint said  do something other than what she was doing i haven't studied the pleadings that close all i know is she objected to leaving and wanted to remain there with her father and that's what it says in the in the main complaint that we've got from mrs lincoln that still alive pleading this case with that said we are put in a situation where we don't know what has gone on we don't know what the mental capacity of the individual that we shot or the individual that is there with their father is this is a situation where at the very least the cases that i would rely on as terry versus ohio dunaway and davis as well as the barnes case that talks about you're going to have to give some folks some type of balancing test that means that in this particular situation where a life has and cave talks about and that's a two thousand not decision talks about another situation that happens where police are called and the individual is shot and it takes many many detention officer turner really never got into the investigation at all us attorney is merely securing erring lincoln removing her from this awful situation and following the directions that he is aaron lincoln into the colleyville police department the ickle and then he lays he does not question missing link in the pleadings need to be able to identify and ascertain and please those very instances and i something to read to you from the pleading that i was talking about which is before your thing about at this point she's already handcuffed and she's saying she wants to be the father says at the time her father shot and killed aaron fell to the ground it known she wanted to see and be with her father which request was ignored and then she was forced to sit in a police car so isn't that she's resisting some order at the door i see as how i'm reading it and we have to consider it in her favor on at this stage you are this harkens back to a case that was what elliot vs her as of his circuit case that said there had to be heightened pleadings and you yourself had mentioned today that there needs to be more than general specificity and in those situations it was required still is i think that the course require the pleadings to address those issues the conclusion statements are not to be weighed in that analysis the factual allegations are to be brought out and drawn up and that's why you have immunity from suit and not just immunity from liability in these particular circumstances you have officers working under the most egregious of circumstances less to be invited to the situation and first to be accused of violating some constitutional rights we are in the least or worst position to ascertain what is going on and we are required to do the most with the littlest of u nderstanding and preparation so in this particular situation the actions of officer turner in going in pursuit to swat protocol and securing that situation that we don't know what the reactions of these individuals are going to be that you say this is the protocols of this is how everybody is going to be treated in a situation that's worrisome if i meet him minimum if it's not clearly establishes sounds like we need to clearly establish that this isn't how you can treat someone in this circumstance what is the guarantee from the court there are no guarantees to being a police officer at all regardless of what the law is we know that somebody just got shot in wherever it was new york or chicago or somewhere just sitting in a police car she just got shot and it's a terrible thing i have great respect for that but the fact is that doesn't give the police the right to treat everyone as if we live in a police state and everyone is just subject to being grabbed and manhandled and handcuffed because police officers want to be say  there is a scenario that requires citizens to be very compliant with police officers in this particular circumstance this link in although upset over the treatment was in a situation where just beside her an armed human being was threatening the police and shot and killed a credit and a blessing that mrs lincoln was not harmed in that circumstance and it is difficult to enforce the laws nation least said that she wasn't in danger but that she was trying to calm her father down then she admits that she told her father not danger the second guy he did he came to the door several times with his gun she was there present with him we don't know if this isn't a companies we don't know if it's a hostage i don't want to make things up but it's difficult to disregard things that might in fact  fight struggle or resist he carried her into the back yard hunger roughly over the back gate and then threw her onto her feet and then put her in the back of a police car in handcuffs and then she says why am i being taken to custody i want to be with my dad at that point that's when she says that according to the first amendment complaint so you need to be honest in answering judging papa's questions not quickly this is a rapidly evolving fluid situation there is not a whole lot of conversation he offers in a catch twenty two if he tries didn't gauge in conversation situation where the officer is going to secure the scene make sure everyone's safe but as a general rule that's not trigger the citizens are free to not comply with things that the officers you be sure absolutely i believe it would be so very reasonable for an officer to want to ensure that she doesn't have a weapon and isn't going to pose a danger to the people at the scene and obviously she's distraught and she just saw her father shot and killed it's frankly a miracle that she wasn't she was standing right next to him but but yes i believe that that would be reasonable but the thing is nobody gave her any instructions nobody gave  any directions nobody told her or asked her or directed her to do anything so there was there's nothing non compliant at all on her part and she didn't fail to comply sin refuse instruction she didn't i enough on that to get addressed or to give up an exchange with your counsel opposite about what are the pleading standards here were you particular enough specific enough to meet whatever duties there are new and in a place of a qualified immunity  fense i believe that i believe that the pleadings do establish that that she did she was not willing to cooperate resisting struggling in countering i believe that they were there as a specific is i can get that she wasn't doing anything in contravention of any officers directions and that she was resisting fighting she knew me weapons so you know if if the officer had communion in giving her an instruction or told her to stand aside me a list or job or even have to wait outside or you know something like that and she refused or resisted in some manner i can see then taking the next step but that never happened and i don't believe that there was any justification at all for him having her but even if that was necessary just to ensure that the scene is safe then it is there once they made that determination and it didn't in this case is there anything about the physics of his backyard that would record all this throwing her around over the gate i mean over the fence and all of this now i'm aware of  nothing now i'm just trying to figure out not not can he do it constitutionally but why did he act like this mean to seem very bizarre way to treat the daughter somebody just shot i agree and her family in the news that her aunts were there one of whom is a killer police officer and trying to waiting outside in st you know let us let us get to her she's got severe anxiety disorder and we need to be with her we need to help her they were aware of that and they would not let the family see her talk to her or do anything in the they required her sit in back of the police are so in the end they made the conscious decision not to allow