morning honors may please the court my name is martin leach i'm here on behalf of the estate of sebastian gregory and of his parents this is a case about a fifteen year old boy memorial day weekend two thousand and twelve walking within five blocks of his suburban home in the kendall area at approximately two thirty in the morning jurors in this case would know that the kendall area is a residential area with suburbs families not a high crime area in fact officer prez testified that in working in that particular area at that time of the morning typically the only type of crimes he observed that he had to deal with was minors who  out after curfew there is a curfew in dade county and anybody under eighteen is subject to that curfew it's different on a weekday as opposed to a holiday weekend which this was so in this particular case  have a curfew issue with with respect to the boy involved in this case he was out two thirty in the morning he'd been with his dad earlier in the day again it was a holiday weekend memorial day they've been out fishing they got home  thirty in the morning he's restless can't sleep gets up so as to walk around the neighborhood and within five blocks as i said of his home is where this incident happened he was dressed in a baggy sweater t shirt long pants and a cap he had a t ball bat which he had inserted into the pocket of his pants with the sweater over it in order to conceal it i think we know all the facts i mean let's get right down to the key question seems to be was were any is laying prone on the ground and the officer is pointing a gun at him he moved his hands toward his bat that the officer believed was a gun and that's when he started shooting right adamant and i gather initially the district court denied summary judgment officer parental rights because he thought it was a genuine issue material fact but then he sees this video by the colombia t v station that had been broadcast i'm up for it oh wait he was pointing and showing that he was really reaching for his bat that they offer with and then he granted summary judgment officer present what do you say about that yes the videotape in the news story and call the colombia news story was filed with the court i hope that the courts had an opportunity to take a look at the tape and we can see in the tape mr the boy demonstrated what happened he demonstrated getting on the ground putting his hands up over his head and then the shots fired if you look at what the narrator of the report says the narrator before this incident where they claim that he's then reaching for the for the bat in the video he says once he was on the ground sebastian says that he made a movement to slide the bat that he had in his pants to one side because it was making him uncomfortable there's nothing about reaching with his hands or whatever that's completely consistent with him saying i wobbled my leg or move my leg or whatever in order to move the bat out of the position that it was in so that he could become more comfortable but that's what he says that's what mr gregg sebastian says he says he had his hands they were all the time up away from his body there's circumstantial evidence lying face down right yes he's lying face down with his hands up i mean he demonstrated it in the video in the new story so it's right there you can see it and if he was going to demonstrate that he reached for it at that critical moment why would he have done that on this on when they're doing an actual demonstration on the street or not a part of the video h reach try to move my bat but when he does that he brings his hand here and the question is was he just pointing to where on his body he moved whether he was talking about his hand was not that he moved his hands down and did anything that's that's there i think in a nutshell all boils down to what twenty seconds of the video because i notice in the amended ordered the district judge says it's all between like eight point three five and eight point five five on the video of the video yeah where in the video it has a it's a long news story it's about police shootings in the united states for colombian t v and it wasn't just about mr about this point i understand that segment where he's talking about the bat is distinct from where he's talking about how he was that night that is correct if if your argument is look at the video the district court was wrong and how you viewed it there are several reasonable ways to view what they should decide the case that's for a jury decide and i think that we can all agree that if his hands are up and away from his body at all times material that he's not an imminent immediate threat and therefore there's no reason to shoot him under the graham case we first look at what crime he had committed and the officer testified anyway that he moved his hand down forget about the video of the opposite testimony is different than you know that's correct or it's definitely a summary judgment was to begin with correct yes there's a officers testimony but if you take a look at the officer's testimony if i could go through a couple of things about his testimony because if you read the answer brief the one there's two words in there that are used more often than any others handgun and gun and in this case it's not even undisputed that the officer in his mind believed that he was in possession of a firearm and i'm going to tell you why there's a there's a number of factors that lead to that conclusion first as the court says where but the but the quote before you get to that the question is not whether or not this officer subjectively knew it but what a reasonable officer in that position might have believed right correct but it's a reasonable officer with the knowledge that this officer had at that time understood so this is not but is not is purely subjective absolutely not because subjectively he's going to say what he says and then we have to accept what he says but objectively if you take a look at looking at what he knew objective lee and then looking at what a reasonable officer would do the first thing is this particular officer arrested sebastian a month before for the exact same thing he claims he observed a bulge in the right hip area he arrested him and observed that it wasn't fact a t ball bat just like the one in this particular occasion so the first thing i would say is the officer knew when he observed subash because he says that after he came up behind him and then finally sebastian stopped and looked around and the reason sebastian didn't hear him is because he had on these he had an i pod and he was listening to music so when he finally turned around officer press us five i recognize that guy that's the guy that i arrested a month ago who had a concealed weapon he had a t ball bat in his pants i observed a bolt same thing here observable in the exact same place so a reasonable jury could conclude the officer prez obviously knew that he had a t ball bat on him just like he had a month before when you arrested him officer pres also knew that because again the bolt was in the same place he knew it was a minor he knew is fifteen years old he knew that he could not legally possess a firearm because you know under eighteen in florida you cannot possess a firearm there's a lot of that effect in the state of florida and furthermore if he thought he had a gun on him there are police procedures that are required to be followed you get this guy on the ground he puts his hands over his head instead of immediately going in cuffing somebody who you now tell us you believe had a gun on him you instead look away and get on your your your walkie talkie your radio system or whatever that is not consistent with proper police procedure reasonable jury could look at all these factors and say this officer knew he didn't have a gun on him and saw him move slightly and just well over reacted and loaded his gun on him again this is part of the grand test we have somebody who's not fleeing he's not trying to get away he's on the ground with his hands on this correct he did have a t ball bat the prior arrest but he also had two knobs correct is not ok and he had also had an open want to fire to parent court in a a weapons charge and i was a month before at the month before yes when he was stopped then he had an open want for another time but the again these are we just going to what an officer would know and then we'll get whatever reason why officer right i'm just trying to make sure we're all star here because it seems to made this comes down to the video that's really what it is he then moved his hands i didn't well i mean if you move his hands and tried to come down to there you're saying even if he did that you don't concede he did it there was still a question about what a reasonable officer could think that's true and so i'm getting you to say he had two knobs previously  the let me focus then on another fact which is understood in this record the officer was approximately seven feet away the only type of weapon from that distance that the officer could use could be fearful of for his life done move we don't even have to worry about what's on my resume i think the bulges of the hands don't move yes judge brinn did seem to focus very much on the belief that the officer could reasonably believe it's a gun and i've always had a problem with that because i believe given all the factors i've just described that a reasonable jury could find that he wasn't even concerned that he had a gun because of all the things that i've just gone through and again there was police procedure testimony from every other officer on the scene and they said well yeah if you come to a scene and you think somebody has a gun you immediately need to subdue this subject and get the weapon you know so you're not in fear for your life and in this case officer prez did not do that and again if i could make another point as a lot of the cases deal with split second things and everything happens like you open a door and there's somebody there as recent happened in the scott case where there was the denial of rehearing in bank but in this case this is not something that just happened all of a sudden this was over of thirty forty five maybe even more than a minute period of time when the officer first observed this suspect claims that from the first time he saw him he saw the bulge and then followed him this distance not something that just rapidly accelerated over a very brief period time it was trying to help you please the court assisting county attorney as we're greenberg on behalf of the actor leaves something i counsel table with me is assisting county attorney bernard pastore i want to first hit the issue that the officer does have a reasonable belief that he's carrying a concealed firearm because if we don't have that obviously there's nothing here so i think it's very important to hone in on matt and then i'm going to go to the movement that gregory is making that gives the officer a real low with all due respect he could have a reasonable belief he's got a from an expansive if he's like this i don't think he gets to shoot him nine times in the back i agree with i agree with your honor not about the i promise you of course just speaking for myself ok well either he moved the hand so focused there is clear you would admit before the video there's a disputed issue of fact as to whether he moved his hands at all based on the plane's deposition or the testimony i don't concede that it raises a genuine factual dispute because you know i appeal to the district court it is not subject to cross examination because the plaintiff cannot testify at trial second of all the plaintiff's earlier in that video points you see him pointing he goes i was carrying the bag and he shows the interviewer well that is a reasonable inference from the video if that's how your honor reads the video then i'm not going to persuade your honor on that argument and i would ask your honor i one of them i vote for them because i've looked at the video five times well i why i think you also can't ignore what he's saying which is i try to move the bat and the plaintiffs you know you can move but you can move that i mean you've got to look at the evidence in the light most favorable to him in summary judgment right and having looked at the video too he could have tried to move the bat without moving his hands well your honor but you you have to look at it in the light most favorable to him to the extent that it is consistent with the physical evidence and i think that that will know to the extent that it is not inconsistent with the physical evidence shore to the extent that it's not inconsistent and the panel decision in johnson which your honor was on goes goes through that you cannot give a version events that's inconsistent with the physical evidence to defeat a motion for summary judgment now what's inconsistent here with the physical evidence is is that if you have something in your pocket that's two feet long you may be able to shoot and you're lying on your stomach why aren't you able to shift your body or your hips in a way to try to make the bat lie in a less uncomfortable position i think your honor for that question and the answer is he's not lying on his stomach there is  facing like a vis with the bat away from the officer your honour's are where the officer is ok the shot that dr lou describes almost like this from right to left and upwards now the three com i believe it's three com right to left to come left or right i'm not left to right where did they enter the body enter in the in the in the center area but they are but they're going side to side through the body that's very important because it shows that his body is rolling back and forth really could roll once he gets hit not towards the officer here on our she's she is opining then how can if he she is open even if you have shots going in both sides of the body he had to roll one way or another at some point in time but you see you're on am i missing something yes your honor is missing is missing the fact that the body position he claims he's and right lying parallel to the story all the shots would have gone down top he might have been like he mightn't he might not have been lying down in the direction that he said but why is it impossible physically impossible for him to have been lying on his stomach right because if you're like this you can be on your stomach and he might be wrong about being here like this but he could be right about being on a stomach in being here like this and that could change the trajectory of the bullets could it not well it couldn't flip him towards the officer which is what she is opining the only testimony that can explain that shot is officer progresses testimony that he speculation there is no how could he have been how could he have been hit on both sides if he didn't roll right he did roll but he rolled towards the officer that it depends on which shots were hidden him first no because you're on or your honor is assuming that the shots are causing him to roll there is no no i'm not assuming that i'm suggesting that a reasonable juror could find that what people move most of the time unless they're hit in the head when they're shot and non fatally shot people tend to move whether they drop whether they roll they assume a defensive position people don't stand still when they're shot by a far arm at this sort of a distance with respect to your honor i'm not sure how a reasonable jury could find that when the unrebutted expert testimony is that the shots are inconsistent with the position that the plaintiff claims that he's in and  only consistent with officer perez's testimony that he has rolled toward him how could the shots shooting him cost him to roll towards the officer they simply could not have the other you're suggesting that it has to be the shot that makes a move and given that he wasn't killed at that point in time why couldn't he have reacted by rolling in trying to protect himself i'm sorry i'm saying that he's a role that the role begins before the shot of cars and you're saying that i'm well i'm saying that because that's the expert's opinion she says i'm not saying i'm not sure that that needs to be accepted on this record it's summary judgment you may well be right that that's exactly the way things played out but it's uncon could see your argument and i think your argument be a very strong one but if he's being hit on both sides of his body at some point he moved at some point he shifted right unless the officer rolled around and shot him here and then shot him there but the  argument your honor is the officer claims that he is rolling back and forth towards the officer before he's shot that's what causes the bullets to go in on both sides but that's not what the plaintiff says i understand that your honor but the plaintiff's testimony is inconsistent with the ballistics if he's rolling around and hasn't moved his hands can the officer shoot him it depends on the role in this case i think he could and i think because because the officer could perceive that as an ambush and as a threat i know not only if he moved his hands well your honor how can you roll your entire body without moving your hands well as long as the hands are up here as opposed to reaching for what the officer says he thought was a gun you could be rolling in to three hundred sixty degrees as long as you keep your hands away from your hips with wrists with respect to the officer wouldn't be thinking he was an imminent danger of death would of well when someone is holding a firearm this court has held otherwise and that's the john ba a fire the fact that the firearm is holster which is the facts and john baptist it takes one second to on holster that and shoot him i know but that can't be that can't be the standard because if that were the case everybody was armed can be shot not armed it's someone who is armed with a firearm and not compliant with the police your honor that that is that is a very different circumstance and it's not everyone will be aggravating what did he do here to not be compliant under his view of the evidence right well he's making  making under his view of the other than what did he do to not comply well under his view he is trying to move the very object that the officer believes is threatening his life and this is where the circumstances of the encounter matter so much the pla the factual assertions that we made in our statement of material facts that this was an area that had a string of burglaries that officer perez had stopped juveniles carrying concealed weapons that the plaintiff was wearing clothes consistent with criminal activity he's wearing double layer as black on a hot may night that the officer knew this specific individual had a history that included myriad weapons crimes and aggravated battery and it is never been convicted of anything right but when when  officer views someone's criminal history on a records check and all those things come up do you think the officer says he's probably not dangerous because he's never been convicted we're taking this from the perspective of a reasonable officer the reasonable officer does a records check sees a dozen arrests all for weapons and violence charges and sees a registered criminal gang member during this encounter that night the individual doesn't respond to the fact that the police car pulls up behind him he doesn't respond to the officers commands to show his and as you heard he was listening to his i pad a plaintiff didn't testify to that he just said i didn't hear what the officer sad but so so we have a plaintiff who during the encounter is non compliant we already have noncompliance during the encounter we have an officer who thinks that he's holding a firearm why didn't he pat him down he didn't have time the moment that the plaintiff gets on the ground the officer goes to call in what he has and when he looks down on his radio that's when the plaintiff makes the movement they both say that they but they both of them agree he is told to assume a prone position on the ground i just want to clarify and that that he was compliant to that extent he did immediately hit the ground glass after  correct you're ok and the medical examiner doesn't have anything about he's not shot in the hand or even in his arms right there's no bullet in the arms anywhere is that correct brian the officer doesn't testify that he's trying to shoot his hands either i know but if your hands of down your you know i don't know i mean the more i know the less i know right just trying to make sure there are no well there's no there's no record of you doing that the officers had lights illuminated your you rely a lot on this john bad teeth case right yes i mean what the suspect there had committed an armed robbery in gays in the high speed chase with the police crashed car was running through the neighborhoods and had a gun on him right well i mean that is you really think that's comparable of the facts here but i have two responses to that your honor the first is given all the aggravating information that this officer specifically knew about this individual then there was conduct here that would give the officer a grounds of surge shoot right but you're on or when an officer believe someone is carrying a firearm this is three thirty in the morning he is not stopping someone wearing a boy scout uniform coming out of sunday morning church he stopping someone wearing all black at three thirty in the morning who he knows to be a violent criminal gang member that's what this officer knows about him and my second response to that is remember we need clearly established law in this area most of the cases that the plaintiffs cite involve cases where the court has said the weapon was put down the knife was put down the individual had their hands op he doesn't cite a case where the court found that the individual had of vailable for use and made a sudden movement that cases versus city of atlanta on bunk from the middle one nine hundred eighty s i think that i think that in that in kill me or the test them there was a fight i think between the police officers and the defendant they struggled for the police officers gun and at a point even though that it happened and a point in time when the person was i guess less of a danger the police officer fired and we said no summary judgment that's a non bank decision from eighty five i think that the facts by the time the shooting occurs kilmore the plaintiff is completely on arm based on my recollection of the case by the time the shooting occurs he had been on arm at that point he was always on arm but he was going for a gun i my  recollection of the case that is that the use of force in that case is not in response to someone who is a believed to be holding a gun and only he wasn't holding a gun he was going for a gun well i don't i don't see how your honor squares that with  saying is a qualified immunity is an artificial construct courts have come up with it as a way of trying to manage one thousand and three litigation and it's all a fiction because we all know that no police officer goes to west law at twelve midnight every night to see what the eleventh circuit has decided on excessive force cases so that he knows oh my god they decided john bad teeth yesterday so if i have a case like  use deadly force and then the next day and check and see who the eleventh circuit limited john baptist got to be careful if the facts are like this i can do it if the facts are like that i can't do it it's an artificial construct and whether it's fair or not it provides some modicum of protection to a reasonable officer but it assumes that they're completely knowledgeable about existing law that's just the way it goes i understand that you are and i think that when you look he's like this and that there's a nuff evidence to create a factual issue i know you say it isn't you say the rolling says you said the macro exam contradicts the hands you said video contradicts he is trying to move the very object at the officer even if the right moves moves the torso a little bit trying to get the bat not to be right under your officer under the under the arguable your time is expired but you've been entering the court questions which we appreciate  honor actually i should have done this to begin with i have a concern i don't think i think we need to have firm on the miami city of miami because they can't be liable if it's won and willful conduct and to prevailing in one thousand eight hundred three climb it's dismissed it at the place ok we did plead factual factually distinctly with respect to one we said that he purposely shot him and the other one we said that he overreacted under the circumstances when based upon the fact that he was looking down and wasn't paying attention and then suddenly he just shot so if that's the scenario if the jury agrees that that's what happened that he was he basically was not following proper police procedure which is the guy get you get him in  subdued position and then cut made me really inconsistent but anyway well aren't aren't the state law claims intentional towards yes and under seven sixty eight twenty eight which is the florida statute where you can be this guy beat me up in high school and i'm going to shoot him dead it's got to be something malicious in this case i'm not sure i could see where a jury could find he's acting maliciously but i think more likely honestly that the jury's going to find that there's a constitutional violation but that the he didn't act with malice in shooting sebastian instead he was acting with look with not following proper police procedure whole theory is it was just totally reckless and disregard of human life because this is your well there's a third district which is the this is under state statute in the fact district which is the district that includes miami has a specific case that says the statute in question talks about negligence claims but they said a negligence claim would includ it's the well there's one honeywell case which i'm looking for right now is it is it in your brief yes it is in my book i do cite it in my brief with respect to that but i do want to say with regard to the county there the florida supreme court has specifically held that you're allowed to plead in the alternative in these types of cases and it's for the jury under most circumstances for the jury to decide the mouth malicious intent or not of the officer i mean that is the the florida supreme court has held that it was in the one thousand nine hundred six case of mcgee versus volusia county and it's on the stay couple that case clearly would apply to allow us to plead alternatively and then let a jury decide get into the head of the officer which is what juries do and decide whether he was for the foregoing reasons i would respectfully request that the court reverse the summary judgment and the dismissal of miami dade county thank you it cases said medhat it was well argued on both sides and we appreciate your help with the case will be in recess