death case that we believe should have survived summary judgment ronald moore was sixty seven years old a veteran had never been in trouble before he never committed a crime he had a lot of dogs a lot of cats a lot of birds a lot of bunnies a lot of weird animals in his neighbors complain d animal control person came over and he was rude and offensive to her he told her to get off his property he had gestures that she interpreted to make it scary for her to come back supposedly he made comments to his neighbors that we believe were here say com as to the neighbors that if they came back the animal control people came back he shoot first and ask questions second or he'd hurt somebody if they came back because he loved his animals i certainly wish mr moore had complied with miss lynch when she first knocked on the door i certainly wish he had  come in and check all my animals have nothing to hide but he didn't there was no search warrant and i'm not sure about you or we kind of move on i mean he did more than be rude and cooperate it isn't fair to say that he gave i think the neighbor and the officers separately  reached back in front of the animal control officer as if he had a gun she assumed he had a gun he may have been scratching his back i don't know what he was doing he didn't say he had a gun he did not make a threat to her except get off my property he supposedly made a threat to the neighbor that's a real threat that should be considered but it's like triple and quadruple hearsay just because the tac unit officer who actually made the decision to go in and use the dynamic entry in flash bangs and everything they use every single time he had no idea about the threat he didn't know what the neighbor had said and so your honor all of those things were presorted or not think it's really important pre surgery this guy refused to comply pre surgery warned he was given ample opportunity to comply and he just flat out said no and i'm not sure that is a violation of any law not to comply and not to voluntarily talk to officers in fact one of the officers testified we can't make him talk to us nobody even talked to him after there was a valid turn tore our is that your argument that evidently someone recommended the decision him i believe it was a major morris the made that made the recommendation to him but he has to be the one to approve it ok but morris was aware these incidents that we just talked about morris was by somebody who was told by somebody who was told yes i mean but surely the law doesn't require the more senior officer back at headquarters who makes this decision to have been the one who went door that day so the decision was made to use the ultimate force the police department has this is over militarization of our police force this is like going to find some al qaeda leader they come in all in black with helmets in plexiglass and bulletproof vest with him for salt rifles at night and a man who doesn't know they're coming there is no not going announce they they affirmatively said we chose not to it was our intent not to give him an opportunity to comply and berryhill the very one control complaint over a misdemeanor potential misdemeanor animal control whether he was taking care of animals and there was no allegation i'm sorry your honor we're really taking care of them apparently and eventually they found that there were some animals that were not being taken care of there were lots of animals but there was no no even nobody was thinking this was felony but i mean so but i mean the violation you know whether it's misdemeanor or felony they have reason to think that there's some violation of your happening in the house they they've tried to approach him and sort of make this a cooperative thing and rather than get cooperation they get a rat in an implied threat that he's got a weapon and he's ready and he said the same thing to a neighbor what are they so how are they supposed to and to this house that how how should they go about that and if we're writing an opinion what should we say so that maybe one or two cases out and we don't have an officer who actually gets killed sure sure so you are what i would suggest he is exactly what the case losses and that before a decision is made to use dynamic entry at night with flash bangs whether be a felony or misdemeanor that a thorough risk assessment be done i think it was the ramage case that talked about this trial lawyer taking the deposition of officer penny how delighted i was when he said we didn't do a case by case analysis we serve it this way every single time we must but setting that aside in your view knocked and said let's talk about what's going on is that the idea no officer that had a critical incident trained officer officer ever had a conversation face to face with him there was a conversation before the warrant was issued no one ever said to him mr moore we have a valid lawfully obtained warrant we want to cooperate with you and want you to cooperate with us nobody ever said that to him he was never notified that there was a search warrant before there was a search warrant he was belligerent he was a notches he was cranky get out of my property leave me alone making threats before there was a search warrant and then when there's a search warrant berryhill says it himself we should give him an opportunity everyone an opportunity to comply he was never given that opportunity after there was a search issued and it barry hill says if they didn't give him an opportunity to comply it's unacceptable and it director armstrong the head of the police department says it's unacceptable your honor i'm sorry i believe that it was unfair for after the fact judge anderson  trial judge to look at and say well i think it was acceptable under these facts knowing everything that i know that maybe they didn't know so mr moore was never given an opportunity to comply after after all about the potential threat with a gun the potential threat with a gun not only to gloss over again that's a huge issue and that warrants the animal control officer going to law enforcement all he's saying this is over my head i'm scared but as i think he's crazy the city the city identifies him as a middle consumer on one side of its mouth but then denies that he was a middle consumer on the other side of it's mouth and there's a separate a call for how you deal with middle consumers that they completely went contrary to but i mean one thing that they had heard was  mr moore said if the animal control officer lynch came back he would kill i mean so we're we still have to write an opinion that said it had an obligation to send a different kind of officer again to talk to him your honor i think you don't sit in animal control officer after that i think that would be prudent for the city of memphis to it isn't fair for them to think ok he's threatened to kill an officer some kind and we're past the stage of officers kind of talking to him and now we simply have to execute the warrant and at that point what is the safe manner so their choices are we can just give it to the tac unit knowing should they should know what gets imputed to them that every single time the tac unit irrespective of the case or perspective of the circumstances is going to break windows throw hand grenades in there which are essentially grenades the flash bangs through for them in there and go in to accomplish their mission without giving an opportunity to get credit for that point ok and it might they do that and the case law says it wasn't a case of they've done they should say going out and having another conversation is not an option because he said he would kill the other officer there's not going to take that risk how did how did they execute a war in iraq as events where the guy has made a threatening gesture about a firearm and threaten to kill a different kind of officer if he returns i mean there won't do that there are lots of different options and we went through the options that they had they can get into a barricade situation they can have force there with law enforcement officers with bullhorn saying we have a search warrant we want you to let a search your house give him an opportunity no one ever did that we can find out what is the name of his son and daughter or and call them we can have critically trained officers come and actually have a conversation after there is a search warrant and to me that or is there a case because this is you know qualified immunity you know sort of the rules of the game is there a case that you would point to that clearly establishes that the officer had to use one of these or the officers had to use one of these other approaches rather than the one they use you know a cape case said let him barricade himself in or whatever actual method is to do this case by case risk assessment that was not done here about whether assessment or not a case that's i'm not going to now it's alleged violation and after they break in the person in the house points a weapon at the officers is there a case where there's a the court finds a knock and announce violation because there weren't existent circumstances even though later on the person they were looking for points a weapon at the officers i am not aware of that case but i want to see it was really doubtful to me will you want to own  bury the very thing they were worried about happens we can break it down of the segment because i think one important segment i'm saying it all happened within a minute or two first of all it's not a qualified immunity case the court didn't address qualified immunity the courts are there when the constitutional violation so we're not hearing qualified immunity we're here on the constitutional violation and clearly here the pattern of conduct is established that i think the city and one of the purposes i think of our civil rights law is to provide redress for past violations and protect us all for future in the city has this unconstitutional practice of sin in the tack you didn't do in the no knock in doing the pledge brains with out to a case by case analysis and we just glossed over that to say it's ok even though we recognize it's probably unconstitutional because here he pointed a gun at the end of it second decision i had plenty of time to make the decision i could have stayed there and bear in a barricade type situation he wasn't in the room mr morton come out and point the gun at the officers the officers chose to throw in another flash bang when the officer admitted that he knew that mr mr moore doubted doubted that he was an officer and really to me more the more troubling aspect says mr moore is on the phone with dispatch and dispatch doesn't even know the right hand doesn't know what the left hand is doing if the officer on dispatch would have said mr moore these are officers are serving a search warrant please come down and cooperate i think the outcome would have been different she says i don't know who you're yelling at on the stay i thought that was a nine one one call he calls nine one line and he's talking to dispatch for the city of memphis and the dispatch officer has no idea that the tac unit is there to serve a search warrant and she doesn't tell him calm down there they are because he's saying people are shooting in my home penny said over and over guy we have a search warrant we're here with a search warrant that's why i think it's important for your honour's to listen to the tape it was part of the record and it's very short he is saying it but it's about a second and a half after he throws another flash bang in that he shoots and kills him and he recognizes pinney's testimony is i thought he didn't believe us  primarily here to answer any questions the court has about the record or the case law to the extent that i can i can answer it adequately because i cannot improve on how the district court analyzed this case in granting summary judgment mr mccann he might be able to answer questions more satisfactory to the court than than i can the standard practice to execute search warrants regarding animal control complaints at night  ma'am the district court recognized attacked as used under very specific circumstances and those circumstances were present here namely you have a search warrant you have a threat of violence against law enforcement or anyone coming on the property you have a you have a reasonable belief that there's access to a gun and yes it go they go in at night because the police officers do serve the tactical advantage regarding serving a search warrant any search war whether it's animal control whether it would you just memphis always execute search warrants at night under a circumstance where tactics a cue to which again is a circumstance of a high risk threat of violence to the police officers where we want to avoid as best as possible to death of our police officers well it's really i guess bottom line one of things that upsets me the most about this case is that apparently the city of memphis is willing to put its officers at that kind of risk over an animal control complaint your honor it wasn't that it was an animal can animal control compliant it was a circumstance where the subject of the service of the search warrant had on multiple occasions not just want to cage and not just to a couple of different people he had a multiple occasions threatened  of violence the circumstance in october on october fifteenth two thousand and twelve where where mr moore were to seed and did this in response to being asked to show his hands two police officers were there they were there because ms moore or ms ms allegedly off the animal rights the animal control officer had heard from a neighbor that this man is a is a risk this man scares me he has threatened me she then was prompted to and going back to do her very very standard job of checking to see if animals are ok wanted m p t to go with her they did and in the presence of n p t asking this man to just come out and talk and have a conversation let this officer do her talk to us one of which was a cia officer there primarily to determine whether or not there was any basis for thinking that this man had any sort of mental issue which in this record there is zero evidence that this man having met any mental issues  again noncompliance again you then heard from the next door neighbor saying that after you left mr the deceiving came out and want to get and said if she comes back i'm going to kill her and then you had on january eleventh you ten a colonel worthy sending out two more m p t officers to canvass the neighborhood to prepare the area for going in there to deal with somebody who needed to be separated from his gun and once again you have a neighbor saying to these two men p d police officers this man has threatened to kill anyone who comes back to the premises shoot first ask questions later respectfully your honor that takes this out of just a simple i'm not feeding my dogs case it may be like a jaywalking and it's one thing to cite someone for jaywalking but if that someone says if you cite me i got a gun to shoot that to do an entirely different circumstance and that's our circumstance here that's why that's why m p t used tact this is the only circumstance really where n p t uses tact and when you use tact there are certain tactics that you use every single time it's a tool that you use under very specific circumstances where there's an indication a reasonable suspicion that exits in circumstances exist that constitute the threat to an officer safety and they are officers are entitled to protect themselves in doing their daily duty to warrant would they do this at night it gives them a tactical advantage and it's a tactic that they use ok i am not an expert i don't presume to tell them how to do their work but i mean it's just going to greatly increase apprehension of the resident that it's some kind of break in or something i believe the time was about six pm it was january so it was dark and i guess that's night but but yeah it's more a question of the benefit of the darkness and again had been out there on multiple occasions trying to get a hold of mr moore and there was every indication he was not going to comply and when you've got that kind of situation i'm not here to judge their tactics i'm just telling you what their tactics and we have to be absolutely clear is the proximate cause of the use of deadly force against mr moore the deceit was mr moore's decision to point a weapon at officer penny dance here question judge us for a couple of cases where we have the circumstances we have here where any case where i've got to one of them judge batchelder wrote it's the great house the couch case that was the case where going in they didn't knock and announce ok and that may be a problem we don't know but at the end of the day somebody walks out fires a couple rounds off the police officers and the court concluded that that was the proximate cause of the death  the guy was in the middle of his own house with his bunnies and his chickens which he was apparently not treating appropriately he had told the neighbor because apparently it was a fairly obnoxious guy he told the neighbor to leave him alone or you know he's going to shoot or he never displayed a weapon to the police i'm not talking about when they shot him i'm just talking about up until that point certainly prior to their painting the warrant he never displayed a weapon to the police and as far as we know on this record he never displayed a weapon to anybody he just scared his neighbor by telling her he could do that  he didn't come out and fire at the police he didn't he was in his house and they initiated all of this by throwing the flash bangs in there charging in without knocking and announcing he's been broken into he's on the phone asking for help and they come charging in with another flash bang and the way i read this record i'm not i'm a little concerned about whether there might be even an issue of fact as to whether he had a gun in hand at that point seems a little odd and mean here is on the phone calling nine one one asking for help lots of times when you use a phone you need to him to do it but not necessarily i mean it's just he didn't initiate what would cause them to shoot him in the way that the case that you're referring to clearly there was some instigation on the part of the victim actually said well that didn't happen here the facts are the facts in that case were the disputed facts in that case were that she fired two shots into the ground and she was confused the whole idea of matter there was well she was confused you don't know what was going on the person charged and didn't have a uniform on sidewalk you know or i mean you talk about not complying ensure we see cases i mean almost every week where somebody doesn't comply and they end up dead and something many cases those people may not recover because the officers had reasons for what they did but i mean isn't it pretty darn hard to comply when you're sitting at home at night eating dinner or something and the next thing you know these guys smashing your front window and jumping in you've got guys coming in the back window and then these flash bangs start going off i mean it would seem that it is just such sensory overload and shock you know shock and awe literally that you can your brain cannot function and cannot understand enough about what's happening to comply and so it's i mean isn't this a different case than ones where somebody is voluntarily not complying no your honor it's not and it's for this reason the focus has to be on what did what was the risk what was the threat that officer penny reasonably faced and there have been multiple cases in the sixth circuit got them all written down if i wish i can remember him with lho and so on and so forth where the question is not trying to speculate about what was in the head of the deceased you're right but we can't we can't fault him for not complying with this chaos that all of a sudden comes over him like a tidal wave and he may have been stupid in not what is being characterized by you as complying prior to the point at which he had any actual obligation to comply i mean when they show up with a search warrant and say we've got a search warrant then yeah he doesn't have any options but they never did that he had all of his noncompliance except for the very final moments  here all of his noncompliance had to do was leave me alone get off my property and that's correct which is fine every citizen has the right to say well but you didn't view that as fine you view that as a reason to send in the swat team what we what the basis for sending in the swat team was the threat of harm to law enforcement but if the law enforcement hadn't broken in there you didn't have any reason to expect a threat of harm suppose a law enforcement had been outside with bullhorns or something and saying hey you know you're mistreating your rabbits and we're going to come in there we've got a search warrant one way or another we're coming in and he had then said you come in here and i'm going to shoot you ok maybe a different issue maybe it's worth exposing law enforcement to that risk over the animal control problem but that isn't what happened here they never gave him that opportunity your honor i respectfully disagree i think the for the record reflects that we did give me give  mr more than a seat and every opportunity to comply with legal law enforcement process and the issue really when when there was it when the when officer lynch went out there and said listen i need and when he really had prior to that warrant what you're calling noncompliance i would say was non cooperation at what was his obligation up until the point of the why aren't dissolved let us down its obligation to allow  law enforcement into his house to do their their job without a warrant to absent without a warrant there was no obligation there was no obligate you didn't give him a chance and every honor it's a question of when that search warrant was to be served what were the circumstances of the service of that search warrant and where there exits in circumstances facing those police officers based on a reasonable suspicion only if they went in there it's not like he was going to be disposing of evidence which is one usual exit just see it's not like he had a hostage in there which is another it's none of those things were present the only way that the officers were going to be at risk is if they threw the flash bangs and barged into his home dressed as swat team and that's door and knock and think we're here to serve a search warrant you've got someone who has repeatedly stated i am going to use violence if you come back and every every bit of vision that he has a firearm under that circumstance a very and that's what we had here that's what justified the use of tactic was unfortunate it's not pretty but it didn't need to happen but it did and it was it was the deceit and it prompted thank you like the district court appropriately reviewed the first step of qualified immunity when he found that no constitutional violation had occurred and so we did get that initial view from the district of the tax squad no he did not make the risk assessment to utilize the task god that is above his price his pay grade supervisors within the memphis police department make that determination based on the risk that they assess and once they determine that the tax squad is going in after pinney has very little discretion in which the tax does in our building they're always going to use dynamic entry that has been their practice since nine hundred ninety eight long before he was hired by the tax squad and dynamic entry is going to use a no knock and the flash bangs and those are just standard operate operating was on the phone at the time right around the time he shot and he throws the flash bang and goes and a couple seconds later he shoots mr moore would a jury be entitled to find and let me step back and some officers testified officer penny maybe one or two other underwood as well  are so there you know there's a lot of smoke in the room he's got a phone it's hand we have let's say a couple of officers who testify at trial that mr moore was holding a gun and pointing with a jury be entitled not to believe that testimony i don't believe we would get to a jury because i don't believe the plaintiffs met their burden of showing evidence there's plenty of documentary evidence showing that he role that no i don't believe these officers whether it's based on their credibility or based on smoke in the room or whatever in the phone in the hand to conclude that i do not believe these officers and so as fact finders were going to decide the issue in this case as if he is not in fact holding a gun pointed at officer penny i think you have to look at see what evidence there is showing that he was not why why wouldn't a jury be able simply for the reasons i said i don't i think this person is not credible the way they look you know they evaluate credibility they're allowed to do to decide they think someone is not telling the truth and plus the circumstances of smoke confusion in the room flash bangs you know make it hard for everyone why couldn't i guess my question more specifically why couldn't they reject that testimony and make a finding themselves that they don't think he was holding a gun because the district court and in this case found there was understated fact that he was pointing and that all the other we're here to review right noises in the jury make a finding that that on no evidence that he was not because it was all speculation what for example one thing that they like to say was there was a gun still in a holster the fact is there were two guns recovered from that room one in the holster one on his person and  documented throughout documentary number one thirty five with evidence records photographs that speculation can't find the existence of fact based on speculation but here it would be the nonexistence that like you can see that you like you can't speculate that either officer penny nor mr for much more couldn't see you can't speculate that because you know officer pinney said he could see  he and he was within three feet of mr moore and mr moore pointed a gun and that was supported by officer underwood who took possession of the gun and the gun was found to be loaded the plaintiff's counsel challenging that aspect of the court's decision i think yes you saying that the jury could decide that the weapon was not pointed yes i think yes that's what's the what's his evidence for that smoke it's it's more of it well he said that there were the gun was in the holster but he ignores the fact that there's a second gone completely ignored it and so that's the at the argument is the guns and holster yeah what's the other other other arguments about it not being the truth that the officer saw him point the gun at his other argu mr moore didn't get to testify mr moore start of the story wasn't all i submit mr moore side of the story was told because there was a rifle by every door there was an ax by every door i mean he specifically set him in a corner to ambush these officers when he was told that there was a search warrant his response was a search warrant and no big she had he knew exactly was the officer right there and he chose to ignore it i mean he set his story in motion and it's a heartbreaking story don't get me wrong i feel terrible for his family and also penny feels terrible he says that he sees mr moore's face every single day and if you could do it over again unfortunately he said he'd have to do the same thing again because the gun was pointing in his face but it he said that he gave him an opportunity to comply he said don don he tried to set the mini's there was a police we have a search warrant you know don don't search warrant and no big shit that was mr more testimony he didn't care any other question ok thank you so things here are first of all it's not a standard view where you have to find that the truck was clearly erroneous it's a did novo review so you can find that you've got this question of judge catheters asking what do we do with this i mean so according to your counsel the other side one argument was the host of argument that she gave her response what other arguments are you making in terms of it not being an established fact that he pointed the gun at the officers for the shot several things  underwood never saw anybody point to going to anybody underwood's testimony is that i saw another gun there but chose not to take photographs with another gun i have not seen a photograph of the actual gun there's a photograph of a gun in the holster circumstantial evidence wot dif you don't believe the police officers if you're trying to cover for another police officer could you say that there is medical examiner proof that is the the interest of the bullet could was he doing this it's going to be pennies testimony that he was pointing a gun at me one smokes going off and i w i think there is circumstantial evidence or jury could say i don't believe this guy and one of the things that may or may not come into evidence for the truck court is that this in the first minute officer penny was killed on duty officer penny has a history in the record this sort of started this is in the record in two thousand and three or you mean by that so it's interesting it doesn't necessarily contradict the pointing but it contradicts the story that pinney tells in terms of the angle that he's at and if you change in in you defeat his story of what angle the man standing at through the entry exit interview next to the wound then you defeatist or you think you attack his credibility and then you start asking questions why don't you take a picture of the gun sitting buys body why don't you take a picture of the gun period things like that and if they don't and if they question his credibility and a big thing to me is and again i can't be a fortune teller and i went in the room so i can tell your honour's absolutely he wasn't pointing the gun i think there is a question of fact as to whether he was  just one of these things it's kind of tricky about these cases i mean let's say that mr moore survives let's say goes into a shoulder and now he's suing for damages because her shoulder and he has defies that yes i had two farms one was on the night table three feet away and the other was in my holster and officer penny says no it wasn't on the night table it was in his hand pointing at me i mean i think that case would go to trial in terms of there would be an issue of fact about whether it's on the one thousand dollars point but instead he got shot through the neck and he died and so now it's as a matter of law you know so to speak it's not on the night able it is in his hand i just i'm just trying to understand that i gather you would you would say there is still an issue of fact even though we don't have testimony i would say that again through the what about the absence of sort of proof that it was different than the officer just doesn't add up when you look at the medical examiner's report into entry of the bullets and what he says it doesn't add up but really what i want to ask is let's do a what if let's do the what if if more comes out instead of says i don't believe you that you're an officer and in that moment when pinney's got his in for yelling at him on the place i got a search warrant he didn't start off by saying search warrant nitty thing he starts off by saying you're not the police you don't have no search warrant that and then later he says something that that's b s and it's and subject interpretation whether it's big big or that's b s or whatever but he doesn't believe these guys are cops and he doesn't believe these guys really are who they say they are doing what they say they're doing that's pinney's testimony that was his inference from being there it's a pretty decide at that point i'm going to come in made meant the warrant doesn't mean whatever that's not consistent with that that's saying i don't care about warrants from anybody i'm not saying you're not cops your honor i absolutely agree but after four flash bangs have been thrown in your room that's when you're given the opportunity to comply for the very first time and i think that is completely unconstitutional for that to be the first opportunity for me to comply i'm piece it back to the dangerousness or not of the person i mean obviously there are certain people for whom you clearly would do what they did it end this one's closer that's all for sure i understand that but i want to play the what if game real quickly the last thirty three seconds what if he comes out and he says ok any complies at that last minute are we saying that there wasn't a violation of the constitution that they came in at night when wilson versus arkansas says that a home is the safest place in and there can't be a more egregious invasion than a nighttime invasion with flash bangs and and so in that's the supreme court and what if he says ok you scared me to do it i ran into my room i was fearful of my life you busted my windows you came in with grenades on my house but i complied and we were here on a civil rights case i think we would win and give the city a pass because a scared may and may or may not have been pointing a gun in fear was here here wherever was when he lawfully entitle to protect himself if he didn't believe these people were police officers and all the dispatcher had to say was mr moore there are cops complied thank you counseling your honor you're all right it is an case and it will be submitted and there being nothing further this morning