ms. pettit: there are ctainly statements towards that effect. he has created a similar concurrence in a case called mason against lafayette city. justice jackson: i am talking about this case. let me tell you what i think is happening a your reaction. it seemse the question presented here is asking us to decide which test. it sees the moment of the test -- threat doctrine asisnct from the circumstances. the fifth circuit applied moment of the threat. is that right or wrong? it seems now y are doing, whichcumstances, assuming totality, is it ok to include or nsider the circumstance of the officer's own conduct is courts are doing that, is that a problem? that's a separate question that is not, i think, properly within th scope of the question presented which jks us, which test? can you help me understand why we would get into whether the particular circumstance you ha identified it as one of courts should be looking at or not? ms. pettit: i agree with my chronic that it's difficult to answer the question presented without geinto that. i would pnt

ms. pettit: elieve that is what they are referring to when they say t the actions you are talking about areelevan judge jackson: what is a judge "i write separately to express my concern with the circuit nt of threat doctrine" but does not define it the way you have. he say doctrine counters at the supreme court instructions to look at the totaf the circumstances. ms. pettit: i would point you to page 15 a of his opinion where he says th their -- our reasonableness analysis, considering the totality of circumstances is merely performative. the dispute appears to be not the formulationthe rule as i articulate it, but its application. justice jackson: he said it is performative if the moment of at is in the sole determining factor in their reasonabne analysis. he says we have a moment of the threat doctrine that tells us we only lt this moment. makes any references to totality merely performative, because we are looking at the totality, just at the moment of the th do you dispute at least he conceptualized the doctrine in the way i am descr and the way petitioners have put it forward? msit: t