may please the court craig anderson on behalf of officer sean miller i'd like to reserve two minutes for rebuttal if i may this is the section one thousand and three excessive force lawsuit where the desk district court failed to grant officer miller qualified immunity taking the facts in the light most favorable to the plaintiff but viewing them through the eyes of a reasonable officer on the scene there was really no dispute that it was reasonable for officer miller to use deadly force or at a minimum the law regarding his actions was not clearly established and he would therefore be entitled to qualified immunity under that promise well the district court and the plaintiff have focused on their belief that mr the plaintiff was not an immediate threat to officer miller is also undisputed that the plaintiff was the aggressor he was the person who was charging the officer the judge seemed to think that the officer should have is less restrictive means for longer can you address attempts at less lethal force what the district court judge seemed to think was that there were that he should have been able to run further away and keep this charade going on that already gone on for two minutes where the officer should have been able to keep a safe distance and been able to to keep this going on legally there's absolutely no obligation for officer miller to continue to use those types of less restrictive means once they have fail there's no duty to retreat there's no duty to move to peck there's no movie no legal obligation to go to a baton fact it would have been silly to go to a baton and take a smaller club against a bigger club and try to win that one the pepper spray obviously with the two taser deployments not having any effect on the plaintiff you could objectively believe this is not going to have any effect on him as well the reasons that it became more dangerous at the time of the shooting was because officer miller was backpedaling he was that kill that pedaling rapidly and he was coming up against the building so we know what we have there are some disputed facts with respect to the backpedaling there was i think there's some conflict in the record as to whether his parking bumper that he could trip over there plus you have to live under the concrete where he's now running backwards with obstacles coming into his way that he could he could trip and fall down and it's undisputed that plaintiff was somewhere between six and ten feet away from him  with this stick ready ready to strike there's been some insinuation that because it was not above his head the stick was not a threat and i don't understand why that would not make it a threat because the stick according to officer miller and the other witnesses was being waved and they all agreed that the plane desire was to cause this officer harm me ask you a question about how this incident occurred i'm not sure it's relevant so i want to find out if you think it is troublesome about this case from they cannot be punished for their tactical decisions unless those tactical decisions are themselves an independent so for example if you didn't have a right to be there he didn't have a right to confront him and it may be relevant but here doesn't matter whether or not he was actually committing a crime everything after that i understand your position on because after that the the plaintiff is coming at him with a stick and they try several mechanisms to stop it and they can't stop it so i'm with you on how reasonable the officers were after that do we take into account how reasonable the initial encounter was or was it just not something that we look at all that you know and i think the case that i would like you for there is billington versus where an officer may make poor choices in how he approaches a situation or maybe  could have made some waited for backup could have taken some of those actions and simply is not relevant in the analysis of whether the final act was excessive or not whether it was he legally confronted and we take this situation from there forward yes because when you get there what he says is come stand in front of my car and that's when according to officer miller raises the club and screams at me tell him in the show in canada get on the ground initially he says come to the front of my car it's when he comes at him and actually that he begin yell for the next two minutes get on the ground drop the stick and there's actually nothing wrong with that i mean the officer had an obligation to go investigate what was going on here and he didn't do anything wrong by pulling up in verbally challenging he didn't have his gun drawn he didn't you know he what he's being advanced upon and so you have an officer standing there issuing verbal commands and orders which is exactly what they're supposed to do on the force continuum you know it's officer presence and it's verbal command is the two lowest levels of force that an officer can use so he's doing exactly what he's trained doing exactly what he should do typically when an officer does that they don't expect to be at vance to pond by someone holding a weapon so that it's not officer miller's fault to answer your question and it really cannot be factored into this analysis as it was there were you wouldn't so let's assume that he is appropriately initiated even then if if the if the person kept advancing on him and threatening him he would be entitled to protect himself we then have a two minute encounter  the case where it's not ok to do that was the city and county of san francisco case with alexander where they illegally entered an apartment where there was a mentally ill person who had said if anyone comes in here with a shoot you and they didn't have any right to be in there in the first place and then when the guy point gun they shot him and that was not ok because the entry was and here it's just it's a red herring to say that he could have approached it differently tactically and that's where we just got to stop behind where there could be other less intrusive means that the officer doesn't have to exhibit superhuman judgement so what do you choose do you think the district court for were disputing the schools and that's what's interesting what's what the district court said is there was a dispute regarding the nature of the command there was a dispute regarding the distance so everyone believed it was between six and ten feet and the district court implied that there was a duty to retreat that you just you just keep running around this parking lot till he gets tired i guess and there's really no law and that's what's interesting in both the plaintiff brief and in the district court order is there is no case law that is clearly established that would have put officer miller on notice that he needed to perform those functions in fact the clearly established case law for purposes of this case is overwhelmingly in favor of officer miller that all of the cases completely and for different reasons they support what officer miller did and even if the court did not agree with you on the first prong you're saying on the second prong absolute it's not clearly established and therefore the ops are would be entitled to profit immunity if haven't you're saying absolutely that's what i'm saying is i believe there are four cases that are extremely strong for officer miller in this case and i really can't name a case that is bad for him in this  assist than if it were ten feet so for our purposes we have to assume ten feet right well the well we have to assume whatever the plane that says how far they were apart if there's evidence of that well but there is some evidence some somebody said i'll go back and record and find will tell you what it was six to ten feet the officer says six to seven and one of the witness mcveigh vickers says five to seven ok then our expert doesn't matter you're going to can't be it really was six what we know was when someone's got a knife or a sharp edged object that typically law enforcement requires a twenty one foot rule here you have someone who is six feet tall a large man carrying a four foot stick who best case for me is not cited it is law versus county of los angeles highway patrol case where the the reason that law was so good for me is because it's a blunt force object it's not a knife it's not a gun it's a rock regardless you have blanford which is which is a good case you have reynolds county of san diego a good case and then in addition to those you also have billington where the the individual has no weapon and there was a dispute in billington because the officer the allegation there was that the suspect was attempting to grab the officer's gun he never got it but he was attempting to and the officer had pushed away according to some witnesses and create a distance with a suspect in a billington the court just flat out said it doesn't matter if you know he was trying to get the gun it doesn't matter the distance them i think it was affordable but there's certainly no clearly established law that says hey if you get to ten feet you know you no longer in danger because that would be ridiculous someone can close that distance very quickly especially where he's back pedaling towards these obstacles that he is going to face i guess the fact is there's no clearly established laws enough whether if we had it to the contrary if it was ridiculous you to be stuck with i'm stuck with a lot of stuff and that what it is it's not because the law is actually on the officers favor in this case and pretty decisively because i'm still waiting to see which case they would rely on the only two cases that i could see that you could somehow fit into this locks were that simply because the gentleman was walking towards the officer and was not threatening he dropped his crossbow at that and perhaps going versus washington county but in both of those cases the individuals were not threatening the actual officer you know you good afternoon everyone and my name is the old girl ipo and i'm representing the pelleas and i want to thank the ninth circuit and the school for having this here it was probably the only time i can say i actually went to stanford and it's an honor to be here i don't think i've ever been surrounded by such brilliance on all sides at least on your left or right and all in any event as we pointed out in our pleadings we obviously agree with the finding and the ruling of the district court first of all and we feel very importantly this is a deadly force case there's an abundance of case law that predated this case that talks about when officers can use deadly force and it's very clear that they can only use deadly force in an immediate defense of life or immediate serious bodily injury i mean there's cases that we cited such as per no three richard quest where a gun in someone's hand is not enough a knife in someone's hand is not enough it has to the immediate threat of death and that is why the distance and other factors i mention in a moment are very important well if this court were to determine that i'm just saying this hypothetically peeling off facts in the light most favorable brennan posed an immediate threat to officer miller what case law indicates that other tactics should have been considered well first of all  we have two arguments one argument is that he should have never shot or based on the disputed and undisputed facts first of all so the record is clear and we cited to this in our paperwork a officer who was present chamberlain said the distance was ten to fifteen kilos a super assume what would have are the deciders assume it's fifteen two years into distance most favorable to your client we know in two minutes and the officers admit this he never swung this or tempted to use this as a weapon in any way against any officer well but here's here's the facts that are undisputed so tell me how you get around these your clients a lot of the deceiving because a large person  larger than the officers i think ok so in twenty five pounds i'm not sure of the way it works with the record suggests holding probably what is a cane but certainly certainly an object that's capable of inflicting damage capable but a coming towards the officer so those facts i think are undisputed i believe you're correct although there is a dispute as to the timing of one of the beanbag and but at least after these four events occur this even is still advancing towards the officer i believe that is ok let's assume the officer is ten to fifteen feet away at that point and the officer fires at that point those facts are on speed and i don't know whether it's ten feet or fifteen feet or so we have to assume for statement his deposition and their police practice expert's deposition as well and i think if you just give us the our side we are two twenty two twenty one this is from chamberlain he says before the shot and at the time of the shot that the deceit was not doing anything threatening with that but still we still advancing correct ok so it walking offensive as assume all of those assume the facts that you've just stated tell me what clearly established law what case more doing the second prong of qualified immunity would tell the officer under that circumstance he did not have the right to use deadly force well starting with graham v connor tennessee v garner in all the cases that look at deadly force as a facts he was not entitled to use deadly force yes and so tell me what case what your as your opponent asked what's your best case on distance and shooting well twofold maybe one of our best cases colonel where a guy with a gun in his hand is not enough to shoot him even that short distance and there's every one of their cases that they cited which we mentioned in our brief it's clearly distinguishable because you have someone grabbing the officers  trying to stab the officer with a knife trying to run over the officer with a car every one of their cases is so clearly distinguishable but here is my peers my problem so their cases may be wrong but the second prong of qualified immunity requires that we have decided a case with the supreme court that would notify this officer that what he was doing under the circumstances was was inappropriate the wrong words but that's ok so tell me what case best ones that come to my mind is the case i mentioned colonel v rich press the important the important doctrine because we don't need a case on all fours you're never going to get a case exactly  concept is it hasta but the second prong says it has to be clearly a stablished like law and so it's got to be something that it's not something that the officer has to listen to thirty minutes of oral argument but that's not enough qualified immunity cases can be clearly established that you can only use deadly force to protect yourself the question is whether an officer looking at our case law would have advance notice is we didn't make this up the supreme court did it may be terrible but whether an officer looking at our case law could say yeah i know that i can't do this because the ninth circuit said so or the supreme court said oh and so moved from generality to specifics because the officer under these facts and you've got to take all our facts so you have no serious crime no felony nobody injured the rocks were being thrown into sign not a person he's never charging he's never running he never swung at the officer you just said it was undisputed that he was advancing walking and that's very important he never ran or charge for raised it over his head or held it with two hands or swung it or ever attempted to use it as a weapon at any time and at the time he was shot there own officers says he was not holding it in a threatening way or attempting to swing it or using as a weapon at any point fifteen feet away from him the officer had twelve feet about up he had other less than lethal options three officers had their gun pointed at him only one shot because the other two officers clearly at least an argument could be made realized it would be unjustified to shoot and kill this man when he was fifteen feet away holding a stick not trying to swing it and he was walking towards him at a walking pace this officer had other options with the other officers in a different position is dangerous and that's not to sir my understanding of well no my understanding of the facts is that this officer was was backing up to a point where he would be enclosed where he couldn't as opposed to the other officer on the other side that's correct but there was a dispute as to the distance because he had twelve feet to go he had a card to his right which you couldn't take cover on he had pepper spray he had a police baton there were three officers against one person who had never tried to use that stick as a weapon obviously and then implication could be that perhaps this person have some issues going on at a reasonable officer think that nothing would stop this person after you've done to being backgrounds and and to tastings no i don't think it's reasonable to say if less than lethal is appropriate and for some reason it doesn't work we can then kill the person what's your  felon poses some danger to you the fact that he has a gun as everybody in arizona nevada appears to have and isn't pointing it out you doesn't entitle you to shoot him so give me your best case well it serves as somebody advancing on the off don't think there is a case that's going to where they may not give me your best if you must you must have when you like developed i would say every case we cited on deadly force even their cases if you read them say there has to be an immediate defense of life you cannot shoot someone sometimes you don't need a case if it falls within the obvious you have someone fifteen feet away that has this it's not  look at maybe terrible police practice that's separate issue this is not and not a negligence case it's a nine hundred eighty three case we're looking at qualify to me there was there was a case earlier this year called a cage versus tustin where the officers are approaching the guy that  strange he's acting very weird walking down the street with a hand in his pocket and he's told repeatedly get your hands on a pod get on the ground get on the ground the ground he doesn't and he stepped forward towards the officers and shot and killed and i think summary judgment was granted for the officers in that case and this court reversed and it's a published opinion that is correct that is a case that basically talks about the standard of using deadly force and i think that there was several published opinions there's another one that recently came out called the est manual d s which is another published opinion and i think what the the cases are saying and it should be this way clearly is you can only use deadly force in very limited circumstances and even the training to answer your question through it even the training that was discussed as part of the motion and the officers are trained to deadly force that only be used as a last resort in the direst of circumstances only an immediate defense of life situation only when no other reasonable options are available what what what relevance does it have here and maybe not have any that these four incidents occurred before did you know who it's nothing seems to stop this gentleman i don't think they have any importance because well certainly if they weren't there you'd have a much better case a few issues first of all you were asked someone asked the severity of the crime matter of course it does it's one of the factors to consider under graham and it's part of the model jury instruction one of the officers responding to it responding to someone with a gun who's threatening people or someone with a knife who's trying to harm people or they responding in this case i don't even know if it was a crime throwing a rock at a sign maybe it was i don't know that's what they are responding to so the fact that they were using less than lethal options shows that that was the appropriate force i'm not point to that point up to that point so the fact that for non lethal options have been tried how does that factor into the qualified immunity i don't think it does because i don't think it then gives the officers a pass to say well we tried less than lethal that didn't work so we're just going to kill the person that i don't but it's got to be a factor in terms of what's clearly a stablished because if if other cases that you're citing nothing but than lethal was tried previously that case wouldn't stand for the same proposition so here you do have an undisputed situation for four attempts of less than lethal or attempted and they didn't stop the person and well even you could say more than four you've got to take a shit got to that you've got verbal commands you've got any and and he's physically advancing but i take it though your answer that question would be well if the officer was actually threatened or endangered then it could become very relevant as to whether being that he should he's beanbags he's taser you're saying here is a factual question as to why the officer was ever in that immediate harm and all right and that's the heart of what we're trying to say and i think that's what the district court was trying to say it was trying to say these are issues that the jury has to decide the district court looked at this very carefully the video and all the evidence is understood both saw it and it i think we don't give any deference to just i understand that but i think just looking at this day normal this is something a jury is going to have to think there's a lot of factual disputes in the case was he threatening them with this object was he trying to use it as a weapon what was th by my opposing counsel but this is clearly a can use with multiple disputed facts that has to be decided by a jury thank you for your argument and  it's a little disingenuous to say that there was not an immediate or three eyewitnesses citizens with with no involvement mcvicar said that he looked like he was trying to take the officers head off at the club wooten said he was dead set on causing that officer santana said he was flailing swinging it wildly at the officer to say that you're being pursued by someone for two minutes after you use two minutes as you pointed out judge callahan of less than lethal alternatives and that person not going to stop that is the key issue of this he's continuing to advance in blanford the sus the suspect holding the sword wasn't even advancing on the officers he just showed intent to go into a home but the mere fact that he ignored verbal commands and showed intent to go into a residence justify the officers using deadly force although with twenty twenty hindsight it was a horrible decision it was his own home and nobody was in there but when you look at those facts which those officers were found and acted reasonably not even given clearly established that prong they were just found of acted reasonably this case is all the more easier because everyone that perceives a situation felt that the officer was in harm they felt like he was in immediate danger and the fact that they didn't raise a stickler for his head didn't mean that he wasn't intent on using it everyone felt like he was approaching that officer use forced it really doesn't matter what people felt that matters would facts will it matter that eyewitnesses matter because it goes to the reasonable three people perceiving this event of the question as what a reasonable officer what reasonable rights are and when you have someone coming at you with a club type stick i think a reasonable officer could feel threatened and we keep going back to the severity of the crime just record it said it was a very serious crime plenty of council just said it was in the city crime the right until he charted til he persisted vance on the officer then it became a felony assault on a police officer and it became a very serious crime you can stop a jaywalker very minor he pulled a gun you've officers so when you look at these factors and you compare these cases the officers did with this circuit has asked officers to do use verbal commands if you have the opportunity use less than lethal try to exhaust all available avenues to not use deadly force if you can but at the end this court is clear that when you're within and under and i guess it's an undefined zone of danger which we know in eight feet in law was ok