stepdaughter also with us today the man of rona our court reporter in the deposition phase asked that we reserve five minutes for we ask that the court's decision contain the following elements first we ask you to rule then enter plaintiff's facts the killing of jim slater was unreasonable and violated the fourth amendment and second we ask you to rule that mr slater's right not to be killed under these circumstances it was clearly established the law gave a reasonable officer sufficient notice that this killing is unlawful jim can tell us what happens in the those circumstances the circuit has told us that the court can consider all the circumstances including circumstantial evidence which it believed would tend to discredit the story told by the police so we have the following facts from the evidence jim slater was arms when the deputy killed him it's under spirited that deputy harden told the shooter that jim was no longer holding a knife before the shooting before the shooting he says i can't see the knife anymore this is down when this happens as the two officers are down in their squad cars on the wooden ville duvall road and  deputy harden tells them i can't he had a knife i can't see it anymore but could let you agree that there's a difference between a thing i can't see at night and saying he doesn't have a knife if i said determined after but before is it undisputed that he had a what was the cut what is the call for you know what i think it was not determined that the knife was discovered only afterwards under our fa the knife was visible on the bench the shooter testified that he could see the bench before he shot mr slater and then there are facts he could see the knife furthermore if you talk use the counter where in the record can we verify know it's an affidavit from the owner of the nurse who's the owner of the property who says that she what happened is that placed try to do a reenactment after we introduced evidence that you can see the knife so they do a reenactment she looks at the pictures  seeing from that well they put a knife on the bench and she looks at it from the same point of view that the shooter in is claiming that he stood in both in two thousand and nine and then again in two thousand that reenactment you know i don't have that the counties reenactment when was the reenactment that you're referring to where the person who owned the property looked at the  who's the owner of the property and she also says of course that the bench is in the same position that the bench tilts downward so it's not a flat bench this bench tilts downward so if there's an object on the bench you can see that object the shooter admitted that he could see the bench at the time and when we talk about a reasonable officer if you're told that at some point the shooter had and the victim had a knife you see that he's half naked he's just got shorts and sandals on you see him sitting on a bench you see he's got bloody wrists and you don't see a knife the shooter never was there about two minutes he never harden met with my client laura casablanca beforehand and she told him beforehand before the shooting that she had that that there had been a gun in the house and she put it in the trunk of her car and then also as  feet a kitchen knife on the kitchen knives accounted for she said she had collected the knives and put them in the trunk of her car there are no there's no other weapon in play here the county attempts in their brief to insinuate that there was but that's a red herring that's being dragged across your path there's no other weapon in play and the police don't really claim that either they this stuff about another weapon as a last ditch thing that they did in their brief when they admitted that it was possible the shooter could see the bench and they admitted that perhaps it was unreasonable that the jury could find it was unreasonable for the shooter to think that he had a knife so they said well maybe he could maybe he had other weapons and i suppose there's no limit to the imagination police officer could have but we're dealing with the fourth amendment we're not dealing with  imagination shooter says he can't see anything in you know reasonable officer going back to that if i would think that if you're on the scene and you see a half naked guy sitting on a bench and you don't see the knife anymore and you told that he didn't have a knife and he gets up he's walking and you can't see a knife in his hands not a source also saying that he won't show on his hands right  his hands and they say that there's bushes in the area too right i mean it's a it's a fall h there's foliage chorale of that all that's disputed the story about the foliage actually in the in the two thousand nine million they said there was a bush the counties brief later says there was a row bush's and we moved to strike that portion of the counties free because it's a false recitation of what the facts are furthermore  whether they gave him any commands at all is a disputed fact there is if you look at the diagram it seems very three thirty six which i think is very illuminating you'll see that the officer had to walk some distance from the wooden ville duvall road up to the spot where he claims he killed my client he had to do that jim slater had to supposedly cross fifty feet from the bench the road relatively you know cross said distance how could one jury could ask the officer cover that distance shout commands at mr slater and then reach the conclusion that he's ignoring those commands all with any hundred seconds it can't be done your honor i shouldn't say that a jury could find that the story about giving commands was a story that was given later because under king county policy if you say that you gave the person commands they had fifteen homicides where the officers killed people after they allegedly did not obey commands and that's in the bob report liability section of our brief looks like i've got four minutes and thirty seconds left i will i'm going to invade a few more minutes and then reserve the rest for rebuttal why would mr slater try to conceal something with one hand and not the other if his hand was in fact empty and that's the viewpoint that were assisted road the police come up and cause the contact he doesn't in never walks towards the police under our facts and under the police's diagrams the shooter could backed up the diagram e r thirty three thirty six is clear it's no backing up judge callahan you asked about clearly established law we cited five here under our facts mr slater had dropped his knife on the bench and the police know it that case decided in one nine hundred ninety one gave more than ample warning but on top of that fact that the place knew it your not need their officer hardener officer coogan said they knew it right before cogan admits that he could see the bench we're not talking about coogan's mind because we're not prosecuting a murder case here what or what would a reasonable officer do a reasonable officer would look at the bench if he sees a half naked guy get up from the bench and he doesn't see a knife anymore you look at the bench to see if the nice they focus on the bench or would you focus on someone that was approaching you that you thought might be armed how is that take a look at a bench half a second he look at the bench because he doesn't see a knife in his hands he would look at the bench ending up we would argue to the jury that any officer any reasonable officer any reasonable officer would look at the bench to see if that's where the knife is how long does it take to look at it we did not credit let me be clear that we do not credit his testimony and we don't think the jury will good morning good morning may it please the court my name is jessica cause my and along with my co counsel cindy pore we represent the appellate defendants king county and deputy peter coogan on july fourth two taking all the time yes your honor thank you for for asking on july fourth two thousand and nine james slater force deputy coogan to make a split second decision the split second decision deputy who can made was to defend himself against a man who he believed was armed with a knife who was bloody suicidal advancing toward him while refusing to obey commands the events surrounding mr slater shooting happened over eighteen seconds slater was coming towards deputy coogan deputy coogan had no more than twelve feet of mr slater's movements to analyze the situation and decide what to do well i think one of the things that obviously that  in this sort of situation because mr slater is to see you know i'm some situations the person that shot is not deceased and so there can be other accounts of what occurred but here the officers there's there's only their account and then but i think counsel for mr slater has indicated that that they did certain diagrams and all of that and i think when a person is deceased we have to let the everything in the record to see if there's all the circumstances to see if there's some other way that it could be looked at right we have to do a little more searching for you because we only have one one side to count absolutely your honor and the case law is clear on that that when when there are no other living witnesses other than the officers it is the court's duty to examine all of the evidence to determine whether or not the officers account is internally consistent and is there any circumstantial evidence that could tend to discredit the officers testimony here to the contrary you have direct evidence that corroborates the deputy's account of this incident and i will i wanted to address  asking counsel about whether or not deputy kugan can see the knife on the bench from his shooting location so after the glee opposing counsel said there was evidence in the record to reflect that  opposite couldn't see the knife on the edge and that's actually incorrect your honor the deputy coogan testified in his deposition and this is at your eighty nine he said quote mr slater was at a slight incline from us so we were actually looking up at him and even after the shooting the bench the top of the bench was out of my line of sight and plaintiff counsel referent references a declaration from the property owner beverly eisen who went back out to the property what's her property and was out there on july twenty fifth of two thousand and thirteen and that's the slater family supplemental excerpts of record at four beverly ice and says that she stood at the placard marked five and that she could see a knife sitting on the bench placard five was not deputy coogan's firing location that location was actually placard be so respectfully at th declaration from miss ice and doesn't prove anything at all it certainly doesn't prove that in those circumstances that deputy coogan was faced with and which is the the the way that this incident is to be analyzed the perspective of a reasonable officer on the scene standing in the shoes of deputy coogan but in terms of in you know i have a slave mr slater didn't have the kni when it was realize when it became evident later that the knife was on the bench did did mr slater have entries on his wrists or what was that what how does that work out in terms of the evidence your honor and again analyzing the facts that were known to deputy who can as opposed to some additional facts that were known by deputy hardin who was the first arriving deputy on the scene deputy kugan heard the radio transmissions and route to the scene he heard that mr slater had gone back into the home where he had access to weapons including guns now plaintiff's counsel said miss casa blanca mr slater's wife said disputes that but what deputy coogan heard is undisputed the radio transmission said he has access to weapons including guns he then hears deputy harden radio that mr slater is on a bench and he's holding a knife and that he's bloody and refusing all commands so when deputy kugan got to the scene that was the information that that he knew and when deputy come in got to the scene and the deputies decided that their best course of action was to wait for backup that they knew was on the way over two minutes passed between deputy coogan's arrival and the time that mr slater got up from the bench and in the prior argument your honour's focused on what is the clearly established law which is of course the the issue that we have to focus on here deputy coogan is entitled to qualified immunity as long as it was not clearly established that his actions were unlawful in these circumstances and i think that deputy coogan's own testimony recognizes where that line was he testified that when he arrived at the scene and mr slater was up on the bench where he you could no longer see the knife but it had been reported that he'd been on on the bench with a knife earlier he's sitting on the bench the deputies could not see has he at whether or not anything was in his hands at that point but he was bloody the deputies decided to wait for backup he was a threat at that point because there were residences in the area and he had been in possession of a weapon but the threat was not imminent and it wasn't until mr slater got up from the bench that that circumstances of this incident changed that the deputies were forced to react by the circumstances caused by mr slater this isn't a case where the officers own actions escalated the confrontation now it's our problem your counsel for the appellant said that deputy harden said there's no knife what information is there prior to the shooting about to deputy harden say that to deputy kuiken before when a deputy harden what what's the evidence in the record that we have to look at the evidence is that deputy harden told deputy coogan that mr slater had been in possession of a knife but he could no longer see the knife it is also undisputed that neither deputy saw mr slater get up from the bench the deputies were conferring certain strategizing that they and formulating their plan which was to wait for backup that was on the way they were gloving up mr slater was bloody so in case they had to go hands on with him so they were preparing for that but they knew that backup was on the way so that they with additional officers that he could either surrender or that there would be additional officers if they had less or a switch from a handgun to a rifle or was there any change there on that did deputy coogan change his weapon or what was his weapon know he he had the rifle deputy harden who was the initial contact officer had his hand and deputy coogan had a rifle and that decision was made because of the distance that mr slater was from the deputies and the fact that this was a residential area so deputy coogan chose his patrol rifle due to the accuracy of that weapon in case it did need to be once mr slater got up from the bench it's those circumstances that happened in the eighteen seconds and i think it's important to note that even as mr slater as deputy kugan and mr slater first had an unobstructed view of each other then even then deputy kugan didn't use deadly force at that point he raised his rifle and commanded to mr slater get on the ground show me your hands get on the ground and mr slater kept advancing deputy harden was also repeatedly commanding mr slater to get on the ground but he kept coming and at the point when mr slater was approximately eight feet from deputy cuban was when deputy  weapon now a counsel for the appellant said that that is internally consistent and in accurate in light of other evidence presented what's your response to that and quite quite respectfully on i am not aware of the of the of the other evidence that would make that internally inconsistent or circumstantial evidence that would tend to to discredit either deputy's account of the sense that at the eighteen seconds that the they can dispute the pace and manner with which to mr slater came towards deputy who can but they seem to be doing that with only argument and not evidence what can't be disputed is that the short timeframe over which these this incident occurred in the distance over which it occurred i think the district court though said that that deputy coogan violated a constitutional right but it wasn't clearly established and so he gets qualified immunity or what do you agree with that i absolutely do not agree with that your honor and i think what the district court said was the district court gave qualified immunity under the second or the clearly established but found there were factual issues that prevented a determination as a matter of law that deputy coogan's actions were objective lee reasonable we submit that the undisputed evidence in this case supports a finding of qualified immunity on either prong and that is fully set forth in our briefing however i've chosen to focus my argument today on the clearly established pronk as this court is well aware it can affirm on any basis and we think it's entirely appropriate for the summary judgment to be a firmed on the clearly established prong because a reasonable officer standing in the position of deputy who then would not have known that it was unlawful for him to use deadly force the is there clearly established case law that would have put deputy coogan's the question is was it beyond debate that deputy kugan could not use deadly force in those circumstances as someone is a bloody suicidal man is coming towards him who had suicidal it's not disputed because it was and certainly it's not disputed that that fact was broadcast to deputy coogan in route to the scene and that's in the in the radio analyzed from the perspective of a reasonable officer on the scene and without the benefit of twenty twenty hindsight officers as we well know are forced to make split second decisions in circumstances that are tense uncertain and rapidly evolving and that's exactly what this was a nationally when mr slater was sitting on the bench the circumstances were different and the deputies did not use deadly force at that point they didn't use any force at all they showed restraint they were waiting for backup and when mr slater got up off the bench that's when things changed and deputy coogan was forced to react it is not clearly established that an officer and deputy convince position would have known that his actions were unlawful and for those reasons we asked that the district court's grant of summary judgment be affirmed unless the panel has other questions for me the arguments are set forth fully regarding the dismissal plaintiffs other claims record information for you opposing counsel gave us the reference to the slater family if the are four so we have then and this pertains to what you were asked me about which i promised i would get you are thirty three the defendant's answer says quote defendant submitted after arriving at the scene deputy harden told that the kugan that he could no longer see the ni t on the transcript debbie coogan's deposition two very important pages on this issue of the bench in the knife e r eighty nine and e r ninety happy coogan the shooters says deputy harden told me mr slater was holding the knife on the bench and that was the last he had seen it he then goes on to testify this is on eighty nine the nine from where deputy harden's vehicle was parked and from where i shot mr slater i could see the bench but i never went up to the take a look at page ninety i ask him it was the bench was the bench was of interest to you because he was told sitting on the bench yes when he got there he was sitting on the bench yes when he was sitting on the bench do you see him holding a knife i did not his hands as far as you could tell were empty question answer at that point in time yes and then i say he starts walking answer yes and i say after he starts walking do you look at the bench to see if the knife is there he answers again my attention was directed to mr slater not the bench right now he never sees a knife the shooter never se knife period ever so the only information that he has about the knife is from deputy harden who said who himself tells them i couldn't see the knife now you can't justify the killing of a human being because the deputy this individual deputy chose to at least assert in later testimony that he was focused on mr slater rather than the  bench a jury could conclude and i believe the district court did that that his assertion that he could not see the knife on the bench is a material disputed fact and they could find that he could see the knife on the bench