analysis of what the supreme court has set forth regarding the use of the force that we have here the use of the bean bag shotgun for a projectile weapon that is capable of firing a less le round is considered and has been considered by this court to constitute a significant level of force while it's not deadly force its right under deadly force and we think about a significant level of force this court is held it is a use of force which is capable of causing serious injury in this particular case we can't dispute that there was a serious injury mr washington lost the use of his eye the beanbag was shot as at his head so there are was there an immediate threat did the suspect pose an immediate threat here as i'm sure the court has reviewed the video mr washington has its hands clearly visible he's not armed the officers has testified that he wasn't perceiving any kind of bulge in his pockets to be consistent with a firearm his hands or up his resistance would fall into the category of what is commonly called passive noncompliance he is not o beying orders that's undisputed but in terms of what he's doing he's not threatening anyone with a weapon he has no weapon and there's nothing that would be considered to be a threat of deadly force so when we look at the fact the st factor which is the immediacy of the threat i think that there's definitely enough to go to the jury in this case as the court will use this day no will there's definitely not to go to the jury as to whether or not we have a threat sufficient to justify this force nd to counsel you know your brief you argue several times that mr washington was unarmed in this is undisputed he was unarmed of course after the fact they know that he's unarmed but at the time they couldn't see a weapon but they couldn't also determine that that meant he was unarmed many of the commands were turned around which he didn't do and so he could have had a weapon conceivably that's not right in his waistband so so to say after the fact was can from there was not a weapon on his person doesn't mean that the officers knew that at the time i couldn't agree with you more ok which it was a question of so we're you know we're looking at the immediate threat and your argument is he was unarmed and he raised his hands well that's in the context of the officers could not confirm that he was unarmed it appeared to me watching the video he raised his hands as he was just sticky waiting at the officers but he was not obeying a command to raise his hands he had his hands at his waist which means if he did have a weapon  to the open car door of a heavily tinted window car so they couldn't see what was in the vehicle and on top of that they knew he had been a few hours before walking publicly through streets was angelus or ingleside to be more specific carrying a long rifle which appeared to be an a k forty seven dollars were tactical gear camouflage and body armor occluding a helmet and shouting threats of police officers so they had all of this information beyond saying he raised his hands and he wasn't armed is that a correct assessment of what the officers know aside from the comments that he was threatening officers everything else i believe is completely support actually record what he was saying you want to shoot somebody right i mean no he was not actually i must correct the court what he said was and i quote i would blow their heads off and he wasn't referring to a police officer and the mind of this particular officer that they fired officer all of officer  mr washington could be dangerous to police officers so he had been advised of that regardless if he said i'm going to shoot police officers i'm going to blow their heads off the radio broadcast was he may be dangerous to police officers i believe th analysis would dictate that the radio broadcast said that this was in a t w suspect which was not the case but of course i would give the court complete discretion in terms of what the officer knew and the officer necessarily did interesting points that the court is raising is the issue of the crime having think that it the night before but it wasn't being committed at the time of the shooting it's understanding that he wasn't assaulting anyone with a deadly weapon at the time of the shooting and when the court raises the issue of mr washington's access to a weapon what the officers knew versus the fact that he was unarmed and passed leave existing all these things going to support the argument that this should go to a jury but mr dunn let me let me ask you this so let's just assume that there on the facts are taking a light most favorable to your client that a reasonable jury could find a violation of the  ok but the off the district court here also granted summary judgment on the basis of qualified immunity that's correct your honor even if we assume then the next question that we need to answer for that you by the united states dream court that we need to look at you know sort of the parameters of the incident that's in play and we need to look at the state of the at that time such as to see if a reasonable officer familiar with the law would understand that their actions under the circumstances would be violent of of the th amendment i hear the court loud and clear right and so what do you rely on tell us in this instance where there's passive resistance there's been information about these weapons a night before that the that mr washington heard that particular warning anyway what what law do you rely on and say it was clearly established these officers should have known better and they should have shot the officer what's his name shouldn't have used  the weapon there are three and only three cases you're going to get in the entire factual record that discussed the use of a less lethal projectile against an individual there are only three the idea only versus rather they are glenn versus washington county and they are the district court case of book versus county in fresno in terms of factual similarity we're just not going to in the history of american jurisprudence find a situation where  individual is passively conducting and a demonstration with the use of a firearm or withholding a firearm that's something that's just not going to happen what we look at is was the last efficient to put these officers on  and what we have when we shave it down to the court what i would present is we have a individual who is not actively resisting he's not armed who at the time of the shooting was not committing a serious crime and at the time of the shooting was subjected to a significant level of force against the backdrop of those three cases this is what we can conclude if a person is passively non compliant not posing an immediate threat and if that same person has not committed what would be considered a serious crime at the time of the shooting and the serious crimes are defined by the california penal code very clearly  even the possession of a firearm illegally is not considered a serious crime in all of those parameters you know against the backdrop of those facts the th circuit has held as have a district courts that the use of a less lethal round is not constitutionally permissible now specifically if you want to parse out the facts of those particular cases in the early which is the st case ever to discuss this the suspect at various times during the incident had a hatchet he had a knife at one point he was holding a lot of lighter fluid he actually wielded in an arm and a crossbow that was not each of these items supporting the conclusion that in this case mr washington didn't even have a weapon in the st place in terms of what the officers up above with the officers knew was from what happened the day before right that's correct and he was standing by the car correct and his hands were they were doing this you are right it's on vacation like they were he was doing other things as well i mean he for not complying with the orders and that's something that's pretty clearly been established other circumstances that the officers had to consider that are different from the cases you cite the location there to a busy intersection there's a school bus clearly visible on the video there were multiple police different than the circumstances of an individual on private property who is mentally i think there were mental illness issues with those individuals as well and not in all of them mentally they were truck or impaired but not mentally ill per   st one is the constitutional violation record a reasonably jury find a constitutional violation directive just forget about that that's a separate question the question we didn't ask is and it's a legal question that's the nd part of a qualified immunity analysis correct and that's a legal determination that is correct your honor it does not go to the jury that is correct and the issue is i would point the court to those three cases if you look at the  we said there was a critical tribal issue a fact that had to be decided before you could st determine whether or not there was a constitutional violation and before you could even make a fair determination of whether or not there was qualified immunity whether the law was clearly established so glahn really doesn't just says there are some cases of excessive force that have to go that that it's appropriate to let to preserve the qualified immunity germination until after some critical facts are answered by the jury that's all what that's all that glenn stands for i have forty seven seconds after time to order your honor and i do agree with that the record is sparse in this regard but in terms of whether or not officer all of us on notice the issues in this case boil down to what was the threat that was posed what was the type of resistance that was offered what was the crime that was he was alleged to commit to have committed and what were the circumstances facing the officer every case that we have established the principle that under those circumstances the use of a less lethal round would not be appropriate the bookcase is probably the most on point this is an individual that previously had been reported to have a nine millimeter gun he was a person that was not complying he was very at various times armed with various weapons there was a perimeter set up there were a lot of officers that were on the scene and all of these issues were taken into consideration by the district court the conclusion was that under those circumstances a jury should be permitted to decide these things and i understand the course distinction qualified ability is to be decided as a matter of law but the issue is in terms of what the supreme court has said we're not going to find a case that is directly no matter what courts you know that court has retreated from its you know one statement that you don't need a case on all fours but you need to look a you can't look at the right so generally you know that there's a right not to be subjected to excessive force you have to sort of tailor it down to the circumstance correct the red light is if you think i'll give you a  honour's i would like to start where my opposing counsel left off which is with the question of qualified immunity and i think it's clear as the court was pointing out that these three cases cited book which is only a district court case glenn and but simply determine that there was a question of fact in those circumstances these cases really involve very very different factors there was no warning given before the shot all of these were either you know in book it was a self reported subject he said you know i'm i'm calling on eleven i'm suicidal i want to be shot by cops glen had a mother calling about her distraught and suicidal son and do you really had a wife calling about her husband you know these weren't people who were accused or thought of as committing crimes the threats in those cases were well understood and contain the you know it's a three inch pocket knife in glen that it's quite clear that there's no threat to anyone else and you have officers who have blown past  checkpoint and just gone on guns blazing and knew that the subject there didn't understand any of the commands because that subject said just before the shooting why are you yelling what's going on here  imaginary threshold no warning and an officer who should have gone back to provide information to his colleagues ended up firing at him and in both and then you know in the book case where salinas had self reported himself a suicidal again he was in the very process of complying with the order to get out of this planter he took one step in a non threatening way that the officers could see he was unarmed nonetheless not only was he shot with a with a less lethal launcher but also with with a killed so these cases are very very different and they would not have put officer all of the other officers with him on the scene on notice that there was a violation you know this is really a tale of two suspects in this situation had mr lindsey who got out the vehicle complied with officer commands and made it safely to the side of the road where you have mr mr washington who from the very get go did not comply in this very tense situation and you know the officers tried to manage this in the best way they could by giving commands which were repeatedly not heeded and then even so five minutes or so into the process it's very clear that now there's a forty millimeter launcher on scene mr washington is being informed there is a launcher we're going to need to deploy it it's going to hurt his response is to taunt the officers to shoot him through his dog tag this is not passive resistance this is now it goes beyond that because it is a verbal signal  that suggests that the subject is not going to be taken into custody without some intervention and then towards the end of this process again forty millimeter standby forty miller ready this is your last chance you can hear on escalators video at three minutes and twenty one seconds and then unfortunately mr washington doesn't comply and officer all of has to take that shot in as a single shot and it's unfortunate that the projectile went where it did but the at this is not  the incident in inglewood they know that at that point they're walking around with illegal assault rifles then there's the whole series of radio broadcasts about what is going on in the parking structure and what they know about that is there's washington and lindsey are getting out of cars they're holding rifles in their hands as they're walking around the garage there's a sense that yes somebody you know took a gun out of a car but that's not to say that they got rid of the gun it's merely that the the officer these subjects are now holding the guns and in fact as the as you look at the radio transcript that's it i think for are up to about page five hundred and ten you see that really as that radio broadcast goes on you keep on hearing these are these are armed suspects they're walking around the garage with with the guns in hand there's no indication at all in the record that when these gentlemen got back in their vehicle and started their drive that they no longer had the guns and i think the really key point here is that the police practices expert that mr washington put forward in this case answered in his deposition that it was completely reasonable for the officer to believe rather that mr washington was armed at the time and they had to act accordingly and that's a serious threat and so you know that that's what gave rise to the situation here and there's you know cases here that are much more on point and glenn indeed orally and rather furtive we're looking back now at a more and we're going to look at the constitutional analysis and i don't think the court needs to go there i think the court would be perfectly within its rights to say that this is a simple case of qualified immunity given the lack of convergence between glenn and your lee and the facts of this case and you know we're not going to reach the constitutional issue but if the court goes  there you know this is this case is much more like something like the miller case miller versus clark county that we cited in our brief where there's you know knowledge of this past felony crime in that case it the fleeing police had taken place longer in the past than it and the crime here had taken place and you know the officers came across a knife on the seat of a car they therefore are allowed to infer that there is possession of a weapon perhaps one more dangerous than a knife the officer in that situation needed to let loose a dog who went off into the to the woods to place a bite hold on that subject and the court and said you know what this is in this situation given the known threat this is an appropriate use of force and it's similar to the plan for a case that we cite and you know there's other cases involving tasers now this is not a taser case  but you know this is just this is a case that call for some measure of force and if you look at the case brian versus macpherson that distinguishes this th circuit case draper versus reynolds which basically you know this brian versus versus the draper reynolds distinction it really sort of illustrates how the line even in those cases was fuzzy between force being constitutional and not and in the th circuit case that judge wardlaw distinguishes and brian versus macpherson what happens is you have a really trivial traffic stop for a traffic violation a gentleman gets out of the car comes comes to the back of the car the officer interacts with him says you know sir you need to get  your driver's license and registration and that command is ignored four times in an argumentative fashion and the officer in that case is forced to deploy a single taser blow to that to that protesters at the occupy berkeley now it's a different totally different kind of scenario but again it's a situation where there isn't maybe that one moment to reach a grab or something but there's there's a need to handle the situation with a modicum of force sure and i think that would be an appropriate way of handling this case especially given how many different factors are in play here it might be on the court may decide that it's better to address this as simply a problem to qualified immunity analysis real that he was about to be shot with a forty millimeter and that it would hurt he he understood that the officers were prepared to fire a round and this is at three yard to fifty two paragraphs forty five and forty six i want to make sure that i have addressed all of the panel's questions but if there are not others thank you very much n the court very clearly held that if a person once has a gun and discards the gun that that does not justify a significant level of force it specifically addressed this issue would seem to be troubling the court  there is a suspect that uses a weapon that is no longer carrying that weapon the prayer use of a weapon does not give the give rise to the type of analysis that would support a significant level of force there was a factual dispute as to what officer all of new what mr washington said in his deposition he said that he did not believe that the statement on the bow their heads off was a pleasurable to him or any other police officer that's a factual dispute with regard to the officers